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THE 


OTTOMAN  LAND  CODE. 


TRANSLATED    FROM   THE    TURKISH 
BY 

F.   ONGLEY, 

OF  THE  RECEIYER-GEXERAL'S  OFFICE,  CYPRUS 
(PASSED  HIGHER  STANDARD  EXAMINATION  IN  TURKISH). 


REVISED,    AND    THE   MARGINAL    ROTES  AND 
.    INDEX  ADDED, 

BY 

HORACE  E.  MILLER,  LL.B., 

OF   THE  MIDDLE   TEMPLE   AND   SOUTH-EASTERN   CIRCriT,    BARKISTER-AT    '  AW 
AUTHOR    OF     STEPHEN*  AND     MILLEK'S     '  COl'XTY     COUNCIL     C 

501 1 


LONDON: 

WILLIAM    CLOWES    AND    SONS.    LIMITED, 
27,  FLEET   STEEET 


S2RVKES 


<  LONDON  : 

PRINTED   BY   WILLIAM   CLOWES    AND    SONS,    LIMITED, 
STAMPOilD  STiSEEf    AND   C1IAKING   CUOS3. 


TO  HIS  IMPERIAL  MAJESTY 

GHAZI  ABD-UL-HAMID  KHAN 

^ 

SULTAN  OF  THE  OSMANLI. 
KHALIFE  OF  THE  MOSLEM. 


SIRE, — 

Under  YOUR  MAJESTY'S  beneficent  reign  signal 
progress  has  been  made  in  the  development  of  the 
splendid  resources  of  the  Ottoman  Empire. 

Englishmen  too  have  shared  with  Osmanli  in  the 
increasing  prosperity  of  YOUR  MAJESTY'S  dominions. 

I  have  translated  into  English  the  Land  Laws 
promulgated  by  YOUR  MAJESTY'S  august  father  and 
predecessor  GHAZI  ABD-UL-MEJID  KHAN  in  order  to 
show  my  countrymen  how  they  may  in  fullest 
measure  reap  the  benefits  of  the  far-sighted  policy 
which  allows  them  to  hold  land  in  Turkey,  arid  to 
instruct  them  in  the  relations  ordained  between  the 
cultivators  of  the  soil  and  the  Government  under 
which  it  is  held. 

That  ALLAH  may  grant  YOUR  MAJESTY  a  long  and 
prosperous  reign  is  the  prayer  of 

Your  Majesty's  most  obedient  servant 

THE  TRANSLATOR. 
a  2 


r 
r 


ERRATUM. 

ge  218,  Article  1,  line  2, for  " movables,"  read  "pure  freehold 
Mulk)  properties  (Ewlak  Slrfe)." 


EXPLANATION. 


THE  Arabic  numerals  which  appear  in  the  text  within  paren- 
theses refer  to  the  Translation  of  the  Notes  in  the  Legislation 
Ottomane,  for  which  see  below,  p.  279,  et  seq.  Thus,  on  p.  1,  we 
read— "  Arazi  Memluke  (6)  is  of  four  kinds."  The  reference 
here  is  to  note  6  on  pp;  280-1. 


CONTEXTS. 


1.  LAND  LAW.     7.  Ramazan,  1274. 

Preface  ...  1 

Arazi  Mernluke            ......  1 

Building  sites           ......  1 

Freehold         ...'....  2 

Arazi  Ushrie 2 

Arazi  Kharajie         ......  2 

Kharaj  Mukaseme          .....  2 

Kharaj  Mmwazz&f          .....'_' 

Arazi  Mevkufe   .......  4 

Arazi  Metruke'    .......  6 

Arazi  Mevat       .                >    .          .          .          .          .  6 

Book  I.     Arazi  Mine. 

Chap.  1.     Tasarruf  (Possession)     ....  8 

,,      2.     Feragh  (Sale,  Cession,  or  Alienation)        .  20 

„      3.     Intikal  (Transmission  by  Inheritance)      .  'J- 

„     4.     Mahlulat  (Vacant,  Escheated)                    .  31 
Book   II.     Arazi   Metruke',    Arazi   Mevat,    arcl    Jibal 
Mubah  (Mountains). 

Chap.  1.     Arazi  Metruke      .....  48 

„     2.     Arazi  Mevat          .... 

Book  III.     Muteferiat  (Diverse)        ....  57 

2.  TAPU  LAW.     8.  Jemazi  ul  akhir,  1275          ...  71 

3.  REGULATIONS    REGARDING    TAPU    SENEDS.     7.  Shaban, 

1276     ,  88 


Contents. 


4.  INSTRUCTIONS  KEGAKDING  TAPU   SENEDS.     15.  Shaban, 

1276 90 

5.  LAW  ON   THE   REGISTRATION  OF   CENSUS  AND  OF   PRO- 

PERTIES.    14.  Jemnzi  ul  evel,  1277   ....     Ill 

Chap.  1.  Number  and  Mode  of  Appointment  of 
Officials 112 

Chap.  2.  Duties  of  Officials  and  Measures  for  Regis- 
tration of  Census  and  Properties  .  .  .113 

Chap.  3.  Duties  of  Managing  Commissions,  Manage- 
ment and  Apportioning  of  Verghi  and  Temettu 
Taxes  and  other  Particulars  ....  120 

Chap.  4.     Village  Divisions  and  Duties  .          .          .     126 
„     5.     Occurrences  .          .          .          .          .127 

„      6.     Management   of    Seneds,    Papers,    Record 
Books,  and  Kochans  .....     130 

Chap.  7.  Fixing  and  Preservation  of  Plates  bearing 
Numbers  with  which  Properties  are  Marked  .  133 

Conclusion.     Matters  of  General  Bearing.         .          .     133 

6.  SUPPLEMENT  TO  TAPU  LAW,  1275.     26.  Safer,  1278      .     135 

7.  LAW    DECIDED    ON    BY    IMPERIAL   IRADE  CONCERNING 

THE   SALE  OF  LAND  OF  CERTAIN  DEBTORS   FOR  THE 
PAYMENT  OF  DEBT.     Rebi  ul  evel,  1279  .         .         .136 

8.  REGULATIONS   CONCERNING  COUNTERFOIL  CERTIFICATES 

FOR  MUSAKAFAT    AND   MUSTKGHILLAT  MEVKUFE   IN 
THE  PROVINCES.     25.  Ramaza,:,  1281         .          .          .     138 

9.  INSTRUCTIONS  REGARDING  CERTIFICATES  FOR  MUSAKAFAT 

AND   MUSTEGHILLAT   MEVKUFE    IN    THE   PROVINCES. 

25.  Ramazan,  1281 147 

10.  INHERITANCE    OF    MIRIE    AND    MEVKUFE    LAND    POS- 

SESSED BY  TAPU.     17.  Muharem,  1284      .          .          .     158 

11.  FISCAL  REGULATIONS  RELATIVE   TO  THE  APPLICATION 

OF  THE  PRECEDING  LAW.     17.  Muhnrem,  1284.          .     161 

12.  INHERITANCE  OF  MUSAKAFAT  AND  MUSTEGHILLAT  MKY- 

KUFE  HELD  IN  IjARETEiN.     7.  Safer,  1284          .          .     164 

13.  ACQUISITION   OF    PROPERTY    BY    FOREIGNERS.     End  of 

Jemazi  ul  evel,  1284  ...  .168 

14.  APPENDIX     TO    INHERITANCE     OF     MUSAKAFAT     AND 

MUSTEGHILLAT  MEVKUFE,  1284.     2.  Zilkade,  1285      .     172 


Cont  xi 


OK    1                                                AKA/I   MIKIK   ASH   MKV- 
AM'   Mi-                                  .  KGHII.I.AT  YAKFIE. 
'_':;.  Run  i  177 

111.     LAW  (\>N<  Ki:MN«,  THE  MoiiT<;A<:E  (TEIHIIS)  OF  Pr.dl'EKTY. 

L'J.  llcl.i  ul  akhir,  12*  180 

17.   LAND  LAW,  1274.    SUPPLEMENTARY  ARTICLE.     25.  Mu- 

hnrem,  IL  182 

.  >TRUCTIONS  CONCERNING  TAPU  OPERATIONS  (no 
date) 183 

19.  LAW    CONCERNING    THE    PROCEDURE     OF    MUSAKAFAT 

AND  MUSTEGHILLAT  VAKFS.  9.  Jemazi  ul  akhir, 
1287  .  198 

Chap.  1.  Concerning  the  kinds  of  Vakfs  and  Plights 
of  Possession  .  .  ,  .,  .  .198 

Chap.  2.  Concerning  the  Formation  of  the  Adminis- 
tration of  Title-Deeds,  and  the  mode  of  keeping 
the  Registers  .  .  .  '  .  .  .  201 

Chap.  3.  Concerning  the  System  of  Alienation  and 
Inheritance  .......  203 

Chap.  4.  Concerning  the  way  of  preparing  Title- 
Deeds  of  Vakfs  207 

Chap.  5.  Concerning  Collecting  (Jabi)  and  Clerical 
Services.  .  .  .  .  .  .  210 

20.  REGULATIONS  MODIFYING  ART.'  18  OF  TAPU  LAW,  1275. 

Rejeb,  1288 212 

21.  APPENDIX    TO    LAW    CONCERNING    CONDITIONS    FIXING 

THE  SECURING  OF  DEBT  AFTER  DEATH  BY  ARAZI 
MIRIE  AND  MEVKUFE  AND  MUSA,KAFAT  AND  MUSTE- 
GHILLAT VAKFIE',  1286.  21.  Ramazan,  1288  .  .  216 

22.  LAW  CONCERNING  THE  SALE  OF  IMMOVABLE  PROPERTY 

FOR  DEBT.     15.  Sheval,  1288 218 

23.  LAW  CONCERNING  MAHLUL  VAKF  HOUSES.     19.  Zilhije, 

12*8 224 

24.  APPENDIX  TO  "  INHERITANCE  OF  MIRIE  AND  MEVKUFE 

LAND  POSSESSED  BY  TAPU  LAW,  1284.  29.  Rebi  ul 
akhir,  1289  ...  228 


xii f  Contents. 


PAOB 

25.  LAW  CONCERNING  TITLE-DEEDS  ISSUED  BY  THE  DEFTKU 

KHAKANI  FOK  MULK.     28.  Rejeb,  1291     .          .          .     220 
Chap.  I.     Mode    of  Issue   of   new   Title-Deeds    for 

"Emlak" L':;i 

Chap.  II.  Procedure  in  cases  of  Bale,  Purchase, 
Mortgage  (Terhin),  Inheritance,  Gift  and  be- 
queathal  of  "  Emlak '*» 234 

26.  APPENDIX    TO    ART.   41    IMPERIAL    LAND    LAW.     19. 

Shaban,  1291 239 

27.  APPENDIX  TO   ART.   108    IMPERIAL    LAND    LAW.     28. 

Rebi  ul  akhir,  1292 L'jo 

28.  APPENDIX  TO  ART.  6  TAPU  LAW.     24.  Jemazi  ul  akhir, 

1292 2-11 

29.  ARTICLE    INSTEAD    OF    ARTICLE    20  TAPU   LAW.     24. 

Jemazi  ul  akhir,  1292 242 

SO.  LAW  CONCERNING  THE  EXTENSION  OF  INHERITANCE  OF 

MUSAKAFAT   AND   MUSTEGHILLAT    MEVKUFE    HELD    IN 

IJARETEIN.     4.  Rejeb,  1292 243 

31.  INSTRUCTIONS  CONCERNING  THE  ISSUE  OF  TITLE-DEEDS 

BY  THE  DEFTER  KHANE  FOR  ARAZI  MEVKUFE.  6. 
Rejeb,  1292 249 

32.  DECISION  STATING  THAT  EXTENSION  OF  INHERITANCE 

is  NOT  OBLIGATORY  15.  Zilkade,  1292        .         .         .     257 

33.  LAW  CONCERNING  LAND.     7.  Muharem,  1293       .         .     259 

34.  INSTRUCTIONS  REGARDING  THE  ISSUE  BY  THE   DEFTER 

KHANE  OF  TITLE-DEEDS  FOR  MUSAKAFAT  AND  MUS- 
TEGHILLAT VAKFIE  IN  CONSTANTINOPLE  AND  THE 
PROVINCES.  9.  Rebi  ul  evel,  1293  .  .  .  .260 

35.  APPENDIX  .  TO  ARTICLE   91   OF  THE  LAND  LAW.     10. 

Rebi  ul  evel,  1293 268 

36.  INSTRUCTIONS  REGARDING  CERTIFICATES   RECEIVED   BY 

THE  EMLAK  OFFICE.  (These  instructions  bear  no  date, 
but  probably  the  date  of  the  following  belongs  to  them 
also.) 269 

37.  VEZIRIAL  ORDER  THAT  No  ACTION  is  TO  BE  TAKEN  IN 

THE  COURTS  AND  PUBLIC  OFFICES  BEFORE  THE  VERGI 

ON  PROPERTY  HAS  BEEN  PAID.     10.  Rebi  ul  akhir,  1293     278 

TRANSLATION  OF  NOTES  IN  LEGISLATION  OTTOMANS          279 


THE  OTTOMAN  LAND   CODE  (a). 
I.  LAND  LAW  (b). 


PKEFACE. 

• 

1,  Land  in  Turkey  is  divided  into  five  classes : —      ciassifica- 
i.  Arazi  Memluke.     Lands  held   in   fee   simple,  j^ds! 

freehold  lands  (1). 

ii.  Arazi  Mirie.  Crown  lands,  belonging  to  the 
state  exchequer  (2).. 

iii.  Arazi  Mevkufe.  Lands '  possessed  in  mort- 
main, but  tenanted  by  a  kind  of  copyhold  (3). 

iv.  Arazi  Metruke.  Lands  abandoned  without 
cultivation  or  ostensible  owner  (4). 

v.  Arazi  Mevat.  Dead  lands,  uncultivated  and 
unappropriated  (5). 

2.  Arazi  Memluke  (6)  is  of  four  kinds  : —  Definition 
i.  Building  sites  within  the  town  or  village  (7), 

and  places  on  the  border  of  such  town  or  village, 
of  at  most  half  a  donum  in  extent  considered  as 
the  complement  of  habitation. 


The  Ottoman  Land  Code. 


Definition  ^-  Land  separated  from  Arazi  Mine  which  has 
Memiuke*  been  given  into  the  possession  of  a  person  to  be 
held  freehold  by  patent  from  the  Crown  and  to 
be  possessed  with  all  the  conditions  of  freehold 
proprietorship  in  accordance  with  the  permission  of 
the  Sheri  (Keligious  Law). 

iii.  Arazi  Ushrie.  Places  given  into  the  posses- 
sion and  distributed  among  the  conquerors  at  the 
time  of  the  conquest. 

iv.  Arazi  Kharaj  ie.     Places  left  in  the  hands  of 
the  original  non-Moslem  owners  at  the  same  time. 
Kharaj  Arazi  is  of  two  classes  : — 
One  is  Kharaj   Mukaseme,  from  the  produce  of 
which  land,  according  to  its  capability,  one-tenth  to 
one-half  has  been  fixed  to  be  taken. 

The  other  is  Kharaj  Muwazzaf,  on  which  land,  by 
way  of  limitation,  a  fixed  sum  of  money  is  assigned 
to  be  paid. 

The  servitude  (8)  c^  jail  Arazi  Memluke,  that  is 
the  land  itself  and  its  proprietorship,  belongs  to  the 
owner :  like  other  property  and  goods   it   can  be 
inherited,  and   it   is  subject   to   the  provisions  of 
Vakf,  mortgage  (Eehn),  gift  and  pre-emption  (9). 
When  Arazi  Usnrir   and  Kharajie  belongs  to  the 
Beit  ul  Mai  by  then;  •  1 1  h  of  the  owner  without  heirs,  it 
acquires  the  effect 'of  Arazi  Mirie  (10). 

Procedure.  ;;?$?he  procedure ,  to  be  followed  with  regard  to  the 
four  kinds  of  Arazi  Memluke  having  been  explained 
in  the  Kutb  Fikhie  (Books  of  Keligious  Law),  the 


'Land  Law. 


provisions  of  Arazi  Memluke  will  not  be  treated  on 
in  this  law  (11).* 


XOTE.* — The  provisions  in  force  with  regard  to  Ar"z> 
are  conttiint"/  in  the  Mejele,  and  the  procedure  concerning  sale, 
purchase,  mortgage  (terhin),  inheritance,  gift,  and  bequeathed  are 
contained  in  No.  26.  • 

3.  The   servitude  of  Arazi   Mirie   belongs  to   the  Nature  ot 
Biet  ul  Mai  (12).     The  places  of  which  the  transfer  tenuri 
and  gift  comes  to  the  Government  are  arable  fields, 
pastures,   yaylaks,   kishlaks,   woods,   &c.,   which   for- 
merly, in  case  of  sale  or  vacancy,  were  held  with  the 
permission  and  through  the  gift  of  the  possessors  of 
Timars  and  Ziamets,  who  were  considered  the  owners 
of  the  soil,  and  for  some  time  with  the  permission  and 
through  the  gift  of  the  Multezims  (13)  and  Muhas- 
sils  (14). (a)     Subsequently,  on  account  of  these  being 
abolished,  as  at  present,  they  are  .held  by  the  permis- 
sion and  through  the  gift  of  the  person  (b)  appointed 
by   the    Government    as    official    for    this    purpose, 
and  a  title-deed  with  the  Tughra  (15)  at  the  top  is 
given  to  the  owner. 

Tapu  is  the  Muajele  (immediate  payment)  given  in  Definition 
exchange  for  the  right  to  possess,  'And  is  collected  by  ° 
the  official  for  the  Government. 

NOTE.  a — It  is  stated  in  Art.  4  of  the    Regulations  dated  23. 
Muharem,  1293,  Destur,  Vol.  III.,  p.  300,  that   Orders,  En 
and  Sheri  Hams,  concerning  settlement  of  disputes,  and  unknown. 
;        Sipahi,  Multezim,   and   Mutessellirn   title-deeds,  v:ill  not  be   con- 
sidered as  legally  valid  title-deeds  for  the  possession  of  Forests. 

B   2 


The  Ottoman  Land  Code. 


if  /s  nf,ifi-,f  in  Art.  ]  of  the  Tapu  Law, dated  8.  Jemazi 
n?  dl,  nt  f/n'sr  are  ll/c   l)<j'tcrd<trs  anil  Ma./  ami   Kaza 

Mmffm.  if  hus  been  //"f/'/i,,/  .sw/w/ //,•;,////  in  a  Vezirial  letter,  dated 
',  that  as  the  /><//»•/•  Khakani  «nd  Tapu  Memours^ 
:  lln'xe  Memours  are  to  lie  considered 
Hie  soil,  it  ml  in  plan's  inhere  the  Tapu  system  has 
i  nt/fil  if.  is  put  into  execution,  the  Mutessarifs, 
,  I\<t! m<tlca.iux,  ami  Mai  Memours  are  to  be  considered 
ntch. 


1.  Arazi  Bfevkuf£  is  of  two  classes  (16) : — 

i.   Is  land  which  while  being  really  Arazi  Mem- 
lulu'  lias  been  made  Yakf  in  accordance  with  the 
Sheri.     The  servitude  and  all  the  rights  of  posses- 
>ii  of  this  kind  of  Arazi  Mevkufe  being  that  which 
MS  the  Yakf,  the  provisions  of  the  law  (17) 
do  not  apply  to  it ;  and  as  it  is  necessary  that  they 
should  be  treated  in  accordance  with  the  conditions, 
whatever  they  may  be,  of  the,  bequeather  only,  this 
class  of  Arazi  Mevkufe  will  not  be  treated  on  in 
this  law.* 


K.* — J"  a  n'ifh  the  Imperial  Trade  communicated 

I;!  I '<:.//•/<//  /('//-  •"•cr>iii'</ real  Vakf  land, Musakafat,  and 

ghiuat,  n,,<L  cases  which  should  be  heard  through  Mullahs  are 
16  Sliert  Courts. 


ii.   Is  land  separated  from  Arazi  Mirie  which  has 
mad.-  Vakt' by  the  Sultans  or  by  others  with 
thr  permission  of  the  Sultan  (18),  as  the  Yakfiet  of 
.ind  of  Ijind.only  means  that  the  Government 
i  as  the  tithes  and  taxes,  of  a  piece  of  land 


Land  Law. 


separated  from  Arazi  Mint-  have  !><• 
some  object  by  the  Sultan,  this  kind  of  Ara/.i  AOli^ 
is  not  real  Yalef  (Evkaf  Saliihaj.  Most  of  the  Arazi 
Mi'vkufe  in  the  Imperial  dominions  is  of  this  cate- 
gory ;  and  the  servitude  of  this  Takhsisat  category  of 
Arazi  Mevkufe,  like  simple  Arazi  Mine,  being  that 
which  concerns  the  Beit  ill  Mai,  the  legal  procedure 
which  will  be  explained  and  stated  hereafter  will 
be  carried  out  entirely  regarding  it.  But  in  the 
same  way  as  the  fees  on  sale  and  inheritance,  and 
the  equivalent  value  of  vacant  (Bedel  Mahlulat) 
simple  Arazi  Mirie  belong  to  th^  Government,  so 
also  in  this  kind  of  Arazi  Mevkufe  they  belong  to 
the  Yakf.  As  the  provisions  •  which  will  be  stated 
hereafter  with  regard  to  Arazi  Mirie  shall  also  be 
applied  to  this  category  of  Arazi  Mevkufe,  when- 
ever the  term  Arazi  Mevkufe  is  used  in  this  law, 
this  "  Takhsisat "  category  of  Arazi  Mevkufe  is 
meant.  But  there  is  also  a  kind  of  this  category 
of  Arazi  Mevkufe  of  which,  while  the  tithes  and 
taxes  (19)  belong  to  Government  in  the  same  way 
as  its  servitude  belongs  to  the  Beit  ul  Mai,  only 
the  rights  of  possession  have  been  assigned  to  some 
object,  or  its  servitude  belonging  to  the  Beit  til 
Mai,  the  tithes  and  taxes  together  with  the  rights  of 
possession  have  been  assigned  to  some  object.  The 
provisions  and  procedure  of  the  law  do  not  apply 
to  the  sale  and  inheritance  of  this  kind  of  Arazi 
Mevkufe,  which  are  possessed  and  cultivated  only  on 


The  Ottoman  Land  Code. 


1»< -half  of  the  Vakf,  either  by  itself  or   by  way  of 
letting,  and  the  profits  derived  therefrom  shall  be 
expended  on  the  thing  or  person  in  whose  favour  it* 
is  stipulated  (20).* 

N«iTK.* — In  accordance  with  the  Imperial  Irade  communicated 

b//    Vczirial  letter,   dated  21.    fiamazan,   12D6,  cases   concerning 

Merknfi'  of  the,    Takhtixat    category,   Arazi   Mrrie,    Arazi 

Mi-trnki',  A /•'/:•'  M»-i~at,uttd  boundary  disputes  between  villages  and 

>re  to  be  heard  in  the  Nizam  Courts. 


ti<m  <>f 
Arazi 

Metrukc. 


5.  Arazi  Metruke  is  of  two  classes  :— 

i.  Are  places  which  have  been  left  for  the  public. 
Public  roads  are  of  this  category  (21). 

ii.  Are  places  which  are  left  and  assigned  to  the 
inhabitants  in  general  of  a  village  or  town,  or  of 
several  villages  or  towns.  Pasture  lands  (meras) 
assigned  to  the  inhabitants  of  towns  or  villages  are 
of  this  category  (22). 

NOTE.— See  Note  to  Art.  k. 


I>efinition 
of  Arari 


6.  Arazi  Me  vat  is  waste  (Khali)  land  which  is  not 
in  the  possession  of  anybody,  and,  not  having  been 
left  or  assigned  to  the  inhabitants,  is  distant  from 
town  or  village  so  that  the  loud  voice  of  a  person 
from  the  extreme  inhabited  spot  cannot  be  heard,  that 
is  about  a  mile  and  a  half  to  the  extreme  inhabited 
spot,  or  a  distance  of  about  half  an  hour  (23). 


IE.  —  See  Note  to  Art.  4. 


Land 


7.  This  Land  Law  is  divided  into  three  books : —       Arrange- 
ment. 
BOOK  I.  Arazi  Mirk'. 

BOOK  IT.  Aru/i  Metruke  and  Arazi  Mevat,  in 
which  book  Mountains  (Jibal  Mubah)  will  also 
be  treated.  . 

BOOK  III.  Muteferikat  (Diverse)  (24). 


77ic  Ottoman  Land  Code. 


BOOK  I. 
ARAZI  MIRIE. 

CHAPTER  I. — TASARRUF  (POSSESSION). 

CHAPTER  II. — FEIIAGH  (CESSION,  SALE,  ALIENATION). 

CHAPTER  III. — I^TIKAL  (TRANSMISSION  BY  INHERITANCE). 

CHAPTER  IV. — MAHLULAT  (VACANT,  ESCHEATED). 


CHAPTEE  I. 

THE   MODE   OF  POSSESSION   (TASAKRUF)  OF  ARAZI 
MIG1E    (25). 

Distribu-  8.  The  whole  of  the  lands  of  a  town  or  village  can- 
land  °and  no*  ^  granted  en  Uoe  to  the  whole  of  the  inhabitants 
delivery  of  nor  by  choice  to  one*,  two,  or  three  of  them.  Different 

title-dmls.  J 

pieces  of  land  are  given  to  each  inhabitant,  and  title- 
deeds  (Tapu  sened)  showing  their  possession  (26)  are 
delivered  to  them. 


9.  Every  kind  of  thing,  that  is  wheat,  barley,  rice, 
madder  root  and  other  grain,  is  sown,  or  is  caused 


Land 


to  be  sown,  bv  h'ttiiiLC  or  li-ndinir.  "n  Ara/i  Mini'  that  Mode  of; 

*  cultiva- 

j'able  of  cultivation.    Without  proving  (2i  thm. 

ihi'  valid  excuses  that  will  be  stated  in  the  chapter 
on  Makltilat  it  cannot  be  left  fallow. 

10.  Meadows  ('28)  from  which  the  grass  is  ivapod  Meadows 
ab  anti'iiM  and  from  which  titheable  produce  is  taken  Tapu.}  ' 
are  the  same  as  cultivated  lands  and  are  possessed  by 
Tapu.     Only  the  possessor  profits  by  the  grass  which 
grows   and   he   can   prevent   another   from   profiting 

by  it  (29).  Meadows  of  this  kind  can  be  broken 
up  and  cultivated  with  the  permission,  of  the  official. 

11.  Only  the  owner  of  the  land-  profits  by  the  grass  Owner  of 
called  "  Kilimba  "  which  grows  on  land  held  by  Tapu  A 

and  which,  has  been  left  fallow  in  order  to  rest  the 
land  according  to  its  •  degree  of  productiveness  (30). 
He  can  prevent  another  from  entering  that  land  and 
from  letting  his  animals  enter  and  graze  (31). 

12.  Without  permission  from  the  official  a  person  Land  not 
cannot  use  the  earth  of  the  land  which  he  possesses  to  u°p  f£rcul 
make  things  like  bricks  and  tiles".     If  he  has  made  c'a-v< 
them  the  local  value  (32)  of  such  earth,  whether  .such 

land  be  Arazi  Mirie  or  Meykufe,  shall  be  taken  from 
such  person  for  the  Treasury. 

13.  A   person   can   prevent   another   from   passing 
without  right  (33)  through  the  land  which  he  owns  by 


io  The  Ottoman  Land  Code. 


Provision    Tapti,  but  he  cannot  do  so  (34)  if  there  is  db  antique 

trespass,     a  right  of  passage  through  that  land. 

• 

14.  Another    person     cannot    arbitrarily    open     a 

trespass,     channel  on  the  land  of  the  person  who  possesses  it 

without  having   obtained   his   permission   and   help. 

And  he  cannot  make  a  threshing-floor  and  in  any 

other  way  also  arbitrarily  take  possession  (35)  of  it. 


Severance       \§   J^and    possessed    in     partnership     capable    of 

of  shares  in  r 

partners'  division,  that  is,  if  it  is  possible  for  each  one  oi  the 
partners  to  derive  a  profit  from  his  allotted  share,  and 
the  partners  or  some  of  them  ask  for  division  (36),  the 
share  of  each  one  shall  be  separated  and  assigned  by  the 
official  in  the  presence  of  the  partners  or  their  legal 
agents  by  drawing  lots  according  to  the  Sheri  and 
other  equitable  means.  And  if  it  is  not  capable  of 
division  it  shall  be -possessed  as  before  in  partnership. 
"  Muhaiat,"  that  is  to  say,  the  system  of  possession 
by  turns,  is  not  applicable  (37). 

Severance        ]§   On  the  division  of  the  land  in  the  way  stated 

to  be  final.  m  J 

in  the  preceding  article,  after  each  partner  has  fixed 
the  boundaries  (38)  and  taken  possession  of  his  share, 
none  of  them  shall  be  able  to  annul  the  division  and 
cause  a  fresh  one- (39). 

Condition  17.  Land  cannot  be  divided  without  obtaining  the 
permission  and  the  assistance  of  the  official  and  with- 
out the  owners  or  their  legal  agents" -being  present. 


Land  Law.  n 


If  it  lias  been  divided  such  division  will  not  be 
respected  (40). 

18.  Lands  capable  of  division  in  the  manner  stated  Lands  of 
in  Art.  15  shall  be  divided  through  the  medium  of  the 
guardians  (41),  if  the  owners  or  some  of  them  of  land 

in  partnership  are  minors.  The  lands  of  lunatics  and 
imbeciles  shall  likewise  be  divided  through  their 
guardians  (42). 

19.  The  person  who  has  the  sole  possession  by  Tapu  Conversion 
of  such  places  as  forests  and  pernallik  (43)  can  make 

it  into  arable  land  (44)  by  opening  it  up  in  order  to 
cultivate  it.  But  one  of  the  persons  who  holds  such 
places  in  partnership  cannot,  wi'thout  the  permission 
of  the  other  partner,  make  the  whole  or  part  of  it  into 
arable  land  by  opening  it  up.  If  he  has  made  it,  the 
partner  can  also  (4o)  be  partner  in  such  cleared 
land  (46). 

20.  Actions  concerning  Tapu  land  which  has  been  Limitation 
held   for  ten   years   without   opposition  will   not  be  ° 
heard  without  one  of  the  legal  disabilities,  such   as 
minority,  madness,  force,  and  being  absent  in  a  dis- 
tant country,  having  been  proved  according  to   the 
Sheri.     They  will  be  heard  up  to  ten  years  from  the 

date  of  the  cessation  of  such  valid  excuses,  and  after 
that  time  has  passed  they  will  not  be  heard.     But  if  Admission 
the  defendant  admits  having  unlawfully  seized  and  aLt^f0" 
cultivated  the  land,  attention  will  not  be  paid  to  the  ^  rons- 

domg. 


12  The  Ottoman  Land  Code. 

lapse  of  time  and  possession,  and  the   land  will  be 

taken  and  given  to  the  owner  (47). 

• 

NOTK.  —  It  is  notified  in  the  Mazbata,  of  the  Mejele  Commission 
that  the  period  during  which  actions  can  he  taken  by  the  Arazi 
Memours  concerning  the  servitude  of  land  is  36  years.  According 
to  Art.  1BG2  of  the  Mejele,  the  prescriptive  period  for  cases  concern- 
ing private  roads,  heds  of  streams,  and  watering  rights  on  Arazi 
Jllirfi'  is  10  years. 

No  claim         21.  Land   which   has   been   seized   and   cultivated 

orajtIonMrf    unlawfully  or  by  force,  and  on  which  the  taxes  have 

laud  taken  been  paid  every  year,  after  having  been  taken  and 

fully.         given    back   by   the   official  after   trial,  neither   the 

official  nor  the  person  taking  back  his  land  shall  have 

the  right  to  claim  aji  indemnity  for  the  deterioration 

of  the  land  (48)  or  an  equivalent  rent  (Ijri  Misl)  from 

the  person  who  unlawfully   or   by   force   seized  and 

cultivated  it.      This  procedure  9  will  also  be  followed 

with   regard   to   the"   lands   of  minors,  lunatics,  and 

imbeciles  (49).  , 

Crops  upon  22.  When  the  land  taken  and  cultivated  unlawfully 
has  been10  or  ^J  force  has  been  restituted,  the  restitutee  can 
nave  ^e  cr°Ps  or  .other  produce  sown  by  the  resti- 
tutor  who  took  the  land,  by  the  means  stated,  pulled 
up  and  given  to  him,  but  he  has  no  right  to  keep 
them  (50). 


—  Appendix  authorized  by  Imperial  Irade  and  published 
•in  the  newspapers  :  "  If  the  seed  has  not  yet  come  up,  the  restitutee 
'!  driver  its  equivalent  to  the  restitutor  and  take  possession  of 
that  sown." 


Land  Law.  13 


23.  If  a  person  lets  or  loans  to  another  the  lands  Estoppel  of 
which  he   possesses,  the   lessee   or  borrower   has   nobojTOwer< 
fixed  prescriptive  right  over  the  land  on  account  of 
having  possessed  and  cultivated  it  for  a  long  time, 

while  it  is  admitted  that  he  is  the  lessee  or  borrower. 
In  this  case  no  consideration  is  paid  to  the  lapse  of 
time,  and  the  owner  of  the  land  has  at  all  times  the 
right  to  take  it  from  the  hands  of  the  lessee  or 
borrower  (51). 

24.  Places  other  than  yaylaks  (52)   and   kishlaks  Appiica- 
assigned  to  the  inhabitants  of  one  or  several  villages  to  yayiaks 
which    have    been   made   into   independent   yaylaks  '™kdgku 
and  kishlaks  ab  antique,  and  which  have  been  pos- 
sessed independently  or  in  partnership  by  Tapu,  are 

not  different  to  cultivated  land  and  the  legal  proce- 
dure stated  above  and  to  be  stated  hereafter  shall  be 
entirely  applicable  to  them.  And  taxes  called  yay- 
lakie  and  kishlakie  shall  be  taken  from  the  owners  of 
these  two  kinds  of  yaylaks  and  kishlaks  according  to 
their  means. 


25.  ^Yithout  the  permission  of  the  official  a  person  Land  not 
cannot  make  into  a  garden -or  vineyard  (53)  the  land  verted. 
he  possesses  by  planting  vines  and  different  kinds  of 
fruit   trees.      Even   if  he  has  done   so  without  per- 
mission the  Government  has  the  power  during  three 
years  to  make  him  pull  them  up  (54).     If  three  years 
have  passed,  and  the  trees  have  arrived  at  a  stage  to 


v 

14  The  Ottoman  Land  Code. 

Vineyards  be  a  source  of  benefit  to  him,  they  should  be  left  as 

orchards,    they   are;   but   the   fruit  trees   planted  without   the 

permission  of  the  official  and  which  have  been  left  for* 

more  than  three   years,  and  those  planted  with  the 

permission  of  the  official  are  not  subject  to  the  land, 

Tithe  to  be  but   are   the  freehold  'property   of  the   owner,  tithe 

not   '        shall  be  taken  every  year  on  their  produce.     Mukata 

Mukata.     cannot  be  assessed  on  the  lands  of  these  gardens  and 

vineyards  on  which  tithe  is  taken  on  the  produce  of 

the  trees. 


Ownership      26.  If  a  person  has  grafted  the  trees  growing  natu- 
gnfted.      ra^y  on  tne  lan(l  possessed  by  him  independently  or 

in  partnership  such  trees  become  his  freehold  property,   . 

and  they  shall  not  be  interfered  with  by  his  partner  or 

by  the  official :  only  the  lawful  tithe  shall  be  taken  on 

their  annual  produce. 

Only  owner  27.  Without  the  permission  of  the  owner  a  stranger 
a  has  no  right  to  graft  the  trees  growing  naturally  on 
the  land  possessed  by  a  person  and  make  them  his 
freehold  property.  If  anybody  is  about  to  graft  them 
the  owner  can  prevent  him.  If  they  have  been 
grafted  the  owner  has  the  power  through  the  official 
to  have  the  trees  cut  off  at  the  place  where  they  have 
been  grafted  (55). 

28.  Fructiferous  and  non-fructiferous  trees,  such  as 
the  palamud  (56),  walnut,  chestnut,  gurgen  (57)  and 


'Land  Law.  15 


oak  (58),  growing  naturally  on  Arazi  Mirie  are  subject  Fruit,  &c. 
to  the  land  (59),  and  the  profit  belongs  to  the  owner  ° 
*)f  the   land.      But   the  lawful  tithe  shall  be  taken 
for  the  Government,  on  the  produce  of  fructiferous 
trees.     The  trees  of  this  kind  which  grow  naturally  Trees  not 
cannot    be   cut    down   or   pulled    up   by   the   owner  or  ae_ 
or  by  a  stranger.      If  they  have  been,  the  value  of stroyetL 
such  tree  when  standing  (60)  shall  be  taken  for  the 
Treasury  from  the  person  who  cut  it  down  or  pulled 
it  up. 

NOTE. — A  law  having  been  passed  by  Imperial  Trade,  dated  16, 
Shevat,  1286,  stating  that  the  standing  value  of  wild  trees  belongs 
to  the  owner  of  the  land ;  the  authority  of  the  sentence  written  in 
lhi"s  28th  article  concerning  the  said  value  belonging  to  the 
Government  is  abolished. 


29.  If    a   person   has   created  the   land  which   he  Ownership 
possesses   into   a  wood   by  planting   on   it  with   the 
permission  of  the  official  non-fructiferous  trees,  the 

trees  become  his  freehold  property,  and  only  he  has 
the  right  to  cut  them  down  and  pull  them  up.  If 
anybody  else  cuts  them  down  he  shall  pay  the  value 
of  the  tree  when  standing.  An  ijarei  zemin  equiva- 
lent to  the  tithe  is  fixed  on  the  land  occupied  by  this 
kind  of  wood,  consideration  being  paid  to  its  difference 
in  demand  according  to  locality  (61). 

30.  Woods,  other  than  Jibal  Mubah  (62)  and  woods 
and  forests   assigned   to   the  inhabitants  of  villages, 


1  6  The  Ottoman  Latid  Code. 

• 

ui.i  on  which  the  trees  grow  naturally  and  which  have 

;  by  been    possessed    as    places    for    collecting    firewood 

l;l''u-         ancestrally  or  by  cession  or  sale  from  another,  shalfc 

be  held  by  Tapu  and  only  the  owner  can  cut  down 

the  trees.     It'  a  stranger  is  about  to  cut  them  down  he 

can  prevent  him  from  'doing  so  through  the  official. 

If  lie  has  cut  them  down,  the  value  of  the  trees  when 

ling  shall  be  taken  for  the  Treasury.     An  ijarei 

Tithe.         zcmin  equivalent  to  the  tithe  shall  be  taken  by  the 

Government  for  the  land  occupied  by  these  woods. 

The  procedure  belonging  to  other  lands  (63)  shall  be 

followed  concerning  this  category  of  woods  also. 


.  —  See  note  to  Art.  28.     See  also  the  Regulations,  Destur, 
Vol.    III.,   p.   300,  concerning    the  mode    of  examination    and 
!//>/>«•!  ;<,n  of  title-deeds  issued  before  the  11.  Sheval,  1286,  date  of 
I  he  Forest  Law  Destur,  Vol.  IL,p.  404,  to  persons 
claiming  possession  of  woods  of  this  kind. 


31.  Without   the   permission   of    the  official,   new 
lgs'    buildings  cannot  be  ejected  on  Arazi  Mirie.     If  they 
have    been   erected  the  Government  can  have  them 
demolished  (64). 

• 

ings  .   h1    it   is  necessary   that   buildings   should   be 

.  ;ive.  erected  by  the  owner  on  Arazi  Mirie,  such  buildings 

as    Chiftlik   houses,  mills,  sheep-folds,  sheds,  stores, 

staples,  straw-barns  and  farm-yards  (65),  can  be  erected 

through  the  official,  but,  in  accordance  with  the  value  of 

;  ,ind  locally,  an  ijarei  zemin  equivalent  to  the  tithe 


•Land  Law.  17 


shall   he  lixi-d  to  he  taken  annually.     It  depends  on 
tin-   sjM-.-ial   onh-r   of  the   Sultan   for   habitations   to 
•be  made  on  raw  land  on  which  there  is  not  tin-  iation 

of  a  building  and  form  it  into  a  village  or  quarter  by 
erecting  mjw  buildings,  only  the  permission  of  the 
official  is  not  sufficient. 


IE. —  The  fees  to  be  taken  on  the  sale  of  raw  Arazi  J7 /'/•/'•' 
>ife  to  be  made  into  a  Quarter,  are  stated  in  the  Vezirial  letter 
Destur,  Vol.  IV.,  p.  420. 


33.  Neither  the   owner  nor  another  may   bury  a  Burial  of 
corpse  on  land  held  by  Tapu.     In  case  any  one  has  °° 
done  so,  if  the  buried  corpse  has  not  been  reduced 
to  dust,  the  official  shall  have  it  removed  to  another 
place.     If  the  corpse  has  been  reduced  to  dust  the 
surface  shall  be  levelled. 


34.  Lands  which  have  been*  held  by  Tapu,  indepen-  Threshing- 
dently  or  in  partnership,  and  which  have  been  created  sa°it-pans 
into  threshing-floors  (66)  by  separation   from   Arazi 
Mirie,  shall  be  subject  to  the  same  procedure  as  other 
land.     The   lands   separated   from  'Arazi  Mirie,  and 
occupied  by  salt-pans,  are  also  of  this  category.     For 
these  kinds  of  lands  a  Mukatai  zemin  equivalent  to 
the  tithe  shall  be  taken  annually. 


ISoTE. — Salt-pans  being  under  a  monopoly,  the  authority  of  this 
irticle  concerning  them  is  abrogated. 


1  8  The  Ottoman  Land  Code. 

Law  35.  If  another  person  without  right  erects  buildings, 

trespass.     or  plants  trees  and  vines  on  land  which  is  actually 

possessed  by  a  person,  the  owner  has  the  right  to  have. 

such  buildings,  vines,  and  trees  demolished,  or  pulled 

up  through  the  official  (67). 
partners.        If  one  of  the  partners,  without  the  permission  of  the 

other,  unlawfully  erects  buildings  or  plants  trees  on 

the  whole  of  the  land  held  in  partnership,  this  pro- 

cedure shall  be  followed  regarding  the  share  of  the 

other  partner  (68). 
Conflicting      But  if  a  person  has  in  his  possession  a  valid  title-deed 

claims  of         -i  .    •        -i    i  />  >  -i  n  •    • 

r  and  obtained  by  one  of  the  means  of  acquiring  possession, 


of  tenant  :  gucj1  ag  cession  or  sale  from  another,  or  conferred  on 

how  ad- 

justed. him  by  the  Government  under  the  impression  that  it 
was  Mahlul,  or  inheritance  from  father  or  mother,  and 
after  having  erected  buildings  or  planted  trees  on  the 
land  held  by  him,  a  person  appears  and  asserts  his 
right  to  the  land  Occupied  by  such  buildings  or  trees, 
if  he  proves  his  right  Jo  possession,  and  the  value  of 
the  buildings  and  trees,  after  having  been  demolished 
or  pulled  up,  is  more  than  the  value  of  the  land,  the 
actual  value  of  the  land  shall  be  given  to  the  person 
who  proves  his  right,  and  the  land,  buildings,  and 
trees  shall  be  left  in  the  possession  of  their  owner.  It 
the  value  of  th#  land  is  more  than  the  value  of  the 
buildings  and  %'ees,  the  value  of  the  buildings  and 
trees  shall  be  given  to  the  owner  if  he  deserves  to 
have  them  eradicated,  and  the  buildings  and  trees 
shall  ''be  given  to  the  person  who  proves  his  right  (69). 


Land  Law.  19 


If  one  of  the  partners,  without  the  permission  of  the  Claims  of 
others,  erects  buildings  or  plants  trees  on  a  part  of  howTd- 
» the  land  owned  in  partnership,  the  land  is  divided  in  Justed- 
accordance  with  Art.  15 ;  and  if  the  land  on  which  the 
buildings  and  trees  are  falls  to  the   share   of  the 
partner  (who  did  not  build  or' plant  them),  the  proce- 
dure (para.  3  of  the  present  Art.)  (70)  shall  be  carried 
out. 


2O  The  Ottoman  Land  Code. 


OH^PTEE  II. 

CONCERNING   THE   MODE   OF   SALE,   CESSION,   OR 
ALIENATION  (F^RAGH)    OF   ARAZI   MIRIE"    (71). 

Mode  of         36.  The  owner  can  alienate  the  land  which  he  holds 
of YS      by   Tapu  to   the    person   whom    he   chooses,   either 
gratis  or  for  a  known  price.     The  alienation  of  any 
Arazi   Mirie  without   obtaining  the   permission   and 
assistance  of  the  official  is  not  valid,  and  the  possession 
of  the   alienee   in   the  land  taken  by  him  in  every 
case  depends  on  the  permission  of  the  official.     If  the 
alienee   dies  without   the  official   having  given   per- 
mission, the  alienor  'can  become  owner  of  his  land  as 
before.     If  the  alienor  tdies,  and  if  he  has  heirs  as 
Devolution  under  (72),  having  the  right  of  inheritance,  it  succeeds 
lands.         to  them  ;  and,  if  he  has  not,  it  becomes  the  right  of 
Tapu  (73)  and  the  alienee  receives  from  the  estate  of 
the  alienor  the  price  which  he  paid.     Likewise,  the 
exchange   of  land   is  also  always  dependent  on  the 
permission  of  the  official  (74).     When  the  owner  of 
land  is  going  to  sell  or  give  it  with  the  permission  of 
Purchaser,  the  official,  the  presence  of  the   purchaser,   or  some 
present.      one  on  n^s  behalf  (75),  is  necessary,  in  order  to  buy  or 
receive  it. 


Land  Law.  21 


37.  Only  the  permission  of  the  official  is  sufficient  Leave  of 
(76)  in  the  sale  of  Arazi  Miriu.     After  a  person  has  sold 

to  another,  with  the  permission  of  the  official,  his 
land,  if  the  person  who  sold  the  land  dies  without  the 
purchaser  having  taken  out  Tapu  Sened  the  sale  is 
valid  and  the  land  cannot  be  looked  upon  as  Mahlul. 

38.  After  a  person  has  alienated  to  another  his  land  Convey- 

•  ance  with- 

gratis — that  is  to  say,  without  naming  a  price — he  shall  out  con- 
not  have  the  power  subsequently  to  claim  a  price  for  S1( 
the  land,  nor  have  his  heirs  the  power  to  do  so  on  his 
death.     After  having  sold  to  another,  with  the  per- 
mission of  the  official,  for  a  known  price,  if  the  said 
price  has   not   been   paid   by  the   purchaser   to   the  Failure  to 
vendor,  the  latter,  and  after  his  death  his  heirs  having  ^deration 
the  right  to  inheritance,  have  the  right  to  take  back  moneJ'- 
the  land  from  the  purchaser,  or,  if  he  is  dead,  from 
his  heirs  having  the  right  of  inheritance.     If  the  said 
price  has  been  paid,  no  right  remains  to  claim  restitu- 
tion as  above  (77). 

39.  After  a  person  has  alienated  to  another  his  land  Convey- 
gratis  or  for   a   known   value  byt  a  decisively  valid  binding. 
alienation,  with  the  permission  of  the  official,  he  cannot 
retract  from  the  alienation  (78). 

40.  After  a  person,   with    the    permission   of  the  Protection 
official,  has  alienated  his  land  to  another,  if  he  also  alienation. 
alienates  it  to  another  again,  without  the  permission 

of  the  alienee,  the  second  alienation  is  not  valid  (79). 


22  The  Ottoman  Land  Code.  <  ' 

Lands  of  41.  A  person  holding  land  in  partnership  cannot, 
without  the  permission  of  his  partner,  alienate  his  share 
gratis  or  for  a  price  ;  if  he  has  alienated  it,  his  partner 

Limitation,  has,  during  five  years,  the  right  to  take  such  share  from 
the  person  who  takes  it  for  its  equivalent  value  (Bedel 
Misl)  at  the  time  when  he  wants  it.  And  even  if  this 
five  years  lapses,  by  such  disabilities  as  minority, 
insanity,  or  travelling  in  a  distant  country,  after  such 
period  has  elapsed  the  right  to  claim  it  does  not 
remain.  And  if  at  the  time  of  the  alienation,  the 

See  p.  240.  said  partner  has  lost  his  right  by  refusing  to  give 
permission  or  to  take  it  when  it  was  offered  to  him,  he 
cannot  afterwards  claim  it. 

NOTE. — Appendix  dated  19.  Shaban,  1291,  18.  September,  1290, 
Destur,  Vol.  III.,  p.  457.  "  If  during  this  jive  years  the  partner 
dies,  his  heirs  having  the  right  of  inheritance,  have  the  right  and  the 
power  to  take  such  land  in  the  manner  stated  from  the  alienee.  If 
the  alienee  is  dead,  the  partner  shall  have  the  right  and  the  poiver  to 
take  such  land  in  the  manner  stated,  from  the  alienee's  heirs  having 
the  right  to  inheritance.  If  beth  the  partner  and  alienee  are  dead, 
the  partner's  heirs  having  the  right  to  inheritance,  have  the  right  and 
the  power  to  take  such  land  in  the  manner  stated  from  the  alienee's 
heirs,  having  the  right  to  inheritance. 

Alienation  42.  When  one  of/the  partners  of  three  or  more  than 
three  is  about  to  alienate  his  share  to  another,  one  of  the 
partners  cannot  have  the  preference  over  the  others. 
If  the  others  are  candidates  also,  they  have  the  right 
to  take  such  share  in  partnership.  If  one  of  the 
said  partners  alienates  to  another  partner  the  whole  of 
his  share,  the  other  partner  can  take  the  share  which 


Land  Law. 


falls  to  him  of  such  share,  and  the  rules  stated  in 
the  foregoing  article  are  also  applicable  concerning 
these. 

43.  When  a  person  alienates  unlawfully  to  another,  Unauthor- 
with  the  permission  of  the  official,  the  land  of  another  ^tion^1 
or  of  his  partner,  without  having  a  Vekialet  from  the 
owner  to  alienate,  if  the  owner  of  such  land  does  not 

agree  to  such  alienation  he  can,  through  the  official, 
take  back  his  land  from  the  person  who  unlawfully 
bought  it  (80). 

44.  The  owner  of  land  on  which  there  are  trees  or  Preference 
buildings,  the  freehold  property  of  another,  and  which  £f™\? 
is  held  and  cultivated  in  subjection  to  such  trees  or  tref or 

buildings 

buildings,  cannot  alienate  it  to  another  gratis,  or  for  a  thereon, 
price,  while  the  owner  of  the  trees  and  buildings  is 
willing  to  take  it  for  its  Tapu  value.  If  he  has  alienated 
it  he  has  the  power  to  claim,  such  land  during  ten 
years,  and  he  has  the  right  to  take  it,  for  its  equiva- 
lent value  (Bedel  Misl),  at  the  time  when  he  asks  for 
it.  And  in  this  matter  such  disabilities  as  minority, 
insanity,  and  travelling  in  a  distant  country,  are  not 
valid  (81). 

45.  If  a  person  holding  land  by  Tapu  within  the  Alienation 
boundary  of  one  village,  alienates  it  to  a  person  who  Bother  * 
is  an  inhabitant  of  another  village,  the  inhabitants  villa§e- 
of  the  village  in  which  the  land  is,  having  need  of 


24  The  Ottoman  Land  Code. 


it,  have  the  power  to  claim  it  during  one  year  for  its 
equivalent  value  (Bedel  Misl)  (82). 

< 

NO  pre-  46.  Pre-emption,  which  is  applicable  to  freehold 
adjacent  7  property  (Emlak),  is  not  applicable  to  Arazi  Mirie  and 
Mevkufe.  That  is,  if  a  person  alienates  to  another 
the  land  which  he  owns  for  a  known  price,  the  person 
who  has  the  same  boundary  has  not  got  the  power 
to  claim  it,  saying,  "I  will  take  it  for  that 
price  "  (83). 

NO  remedy  47.  In  land  which  has  been  alienated  as  so  many 
as  to  area,  donums  or  ziras  (84),  the  number  of  donums  or  ziras 
shall  be  taken  into  account  (85) ;  but  in  land  which 
has  been  alienated,  and  the  boundaries  have  been  fixed 
and  pointed  out  if  the  number  of  donums  and  ziras 
have  been  stated  or  not,  the  number  of  donums  and 
ziras  shall  not  be  taken  into  account,  and  attention 
shall  only  be  paid  to  the  •boundaries.  For  instance,  a 
person  after  having  alienated  to  another  his  land  by 
showing  and  fixing  the  boundaries,  and  saying  it  comes 
to  twenty-five  donums,  on  its  becoming  apparent  that 
the  said  land  is  thirty-two  donums  he  cannot  meddle 
with  the  alienee  by  saying,  "  Separate  the  seven 
donums  and  I  will  take  them  back,"  or  "  I  want  more 
money,"  and  if  the  alienor  dies  after  having  alienated 
it,  his  children,  father  or  mother  are  not  able  to 
meddle  with  the  alienee  either.  Likewise,  if  the  said 
land  only  amounts  to  eighteen  donums,  the  alienee 


Land  Lazu.  25 


cannot  reclaim  from  the  alienation-money  the  amount 
proportionate  to  seven  donums  (86). 


• 


48.  When  a  person  alienates  his  land  to  another,  the  Trees, 
trees  growing  naturally  thereon  ire  subject  to  the  land, 
and  in  every  case  are  included  in  the  alienation  (87). 
But  the  alienee  has  no  right  to  take  'possession   of 

the  freehold  trees  growing  on  such  land  without  hav- 
ing purchased  them  by  so  stating  at  the  time  of 
alienation  (88). 

49.  If  the  owners  of  freehold  (]\Iulk)  trees,  vineyards,  Mulk 
and  buildings  which  have  been  planted  and  built  sub-  trees,' vfne 
sequently  through  the  medium  of  the  official  on  land  yards>  &a 
which   is   possessed  by  Tapu,  sell  them   to  another, 

the  land  also  is  caused  to  be  alienated  through  the 
medium  of  the  official  to  the  person  frho  buys  the  trees, 
vineyards  and  buildings.  The  same  procedure  is 
followed  with  regard  to  woods  of  which  the  land 
belongs  to  the  State,  and  the  trees  mulk  (89). 

50.  The   alienation  to  others   by '  minors,  lunatics,  Disability 
and  imbeciles  of  the  lands  belonging  to  them  is  not 
valid,  if  they  have  alienated  them   and   die   before  &c- 
their  majority  or  cure  :  if  they  have  any  heirs  having 

the  right  of  inheritance  as  stated  hereafter,  they  are 
inherited  by  them,  if  they  have  none,  it  becomes  the 
right  of  Tapu  (90). 


26  The  Ottoman  Land  Code.  »  • 

Purchase         51.  Minors,  lunatics,  or  imbeciles  cannot  buy  and  . 
!lantics,tS'  have  land  conferred  on  them  (91),  but  if  it  is  evident 
&c-  that  it  will  be  a  source  of  benefit  to  them,  their  parents 

or  guardians  as  parents  or  guardians  can  purchase  land 

for  them  (92). 

Sale  of  pro-  52.  The  parents  or  guardians  of  minors  cannot 
infants^  alienate  to  another  for  debt  or  maintenance  or  any 
lunatics,  other  cause  the  land  which  belongs  to  the  minors  by 
inheritance  from  their  father  or  mother  or  by  any  other 
means.  And  they  cannot  pass  it  on  to  themselves.  If 
they  have  alienated  it  to  another,  or  if  they  have 
passed  it  on  to  themselves,  the  minors  can,  through 
the  medium  of  the  official,  take  back  the  land  from 
the  person  in  whose  possession  it  is  during  ten  years 
after  they  have  attained  their  majority  and  are  capable 
of  possessing  it,  and  if  they  ha*ve  died  before  attaining 
their  majority  the  said  land  passes  to  their  heirs  having 
the  right  of  inheritance,  if  they  have  any.  If  they 
have  none  it  becomes  the  right  of  Tapu  (93).  But 
if  the  Chiftliks  of  minors  are  not  administered  by 
their  guardians  in  such  a  way  as  not  to  cause  them 
loss,  and  it  has  been  ascertained  that  the  appurten- 
ances  being  costly  by  their  destruction  and  loss,  total 
loss  will  be  caused  to  the  minors,  it  is  necessary  that 
How  to  be  they  should  be  sold  in  accordance  with  the  permission 
of  the  Sheri ;  if  it  is  proved  by  the  Sheri  that  by  reason 
of  the  separation  of  the  buildings  and  other  appur- 
tenances  from  the  land  the  remainder  of  the  land  only 


Land  Law.  27 


.  is  injurious  to  the  minors,  a  permission  Hujet  will  be 
got  from  the  Sheri,  and  the  appurtenances  with  even 
the  land  can  be  sold  for  their  equivalent  and  true 
value.     After  having  been  sold  in  the  manner  stated 
above  no  right  remains  with  the  minors  to  claim  the  Sale  bind- 
restitution  and  take  possession  of  the  land  and  appur- 1E 
tenances  after  they  become  of  age.     The  procedure 
to  be  followed  with  regard  to  the  land  of  lunatics  and 
imbeciles  is  also  as  above  (94). 

53.  If  the  owner  of  gardens  and  vineyards,  which  Sale  of 
have  been  created  by  trees  and  vines  being  planted 
on  Arazi  Mirie  and  Mevkufe'  or  of  buildings  which 
have  been  erected,  be  a  minor,  lunatic,  or  imbecile,  his 
parents  or  guardians  can  sell  to  another  this  kind  of 
vineyards,  gardens,  and  buildings  in  accordance  with 
the  powers  granted  by  the  Sheri,  and  they  may  also 
alienate  the  lands  in  subjection  to  such  freehold 
property  (95). 


28  The  Ottoman  Land  Code. 


CHAPTEK  III. 

CONCERNING   THE  MODE  OF  TRANSMISSION  BY  INHERIT- 
ANCE OF  ARAZI  MIRIE  (96). 

Devolution  54.  On  the  death  of  one  of  the  owners  of  Arazi  Mirie 
Mirie.  an(l  Mevkufe  the  land  belonging  to  him  or  her  (97) 
goes  by  inheritance  equally,  gratis,  and  without 
price  to  his  male  and  female  children,  whether  they 
are  in  the  place  where  the  land  is  or  whether  they  are 
in  another  country.  If  there  is  only  a  male  or  only  a 
female  child  it  is  likewise  transmitted  by  inheritance 
independently  without  price  (98).  If  one  of  the  owners 
of  land  dies  and  his  wife  is  pregnant  such  land  shall 
be  kept  until  the  birj?]l  of  the  child  (99). 

NOTE. — The  provisions  of  this  article  with  regard  to  tie  mode  of 
inheritance  have  been  annulltd  by  the  provision*  of  the  law  dated 
17  Muharem,  1284,  conce-  ning  the  mode  of  inheritance  of  Arazi 

Mirie. 

Descent  to       55.  The  land  of  owners  of  Arazi  Mirie  and  Mevkufe 

parent.       WJIQ  j«e  wfthout  children  is  transmitted  by  inheritance 

gratis,  in  accordance  with  the  preceding  article  to  his 

father,  if  alive,  if  not  to  his  mother  (100).     (See  note 

to  Art.  54.) 


Land  Law.  29 


56.  If  some  of  the  children  of  the  deceased  exist  Right  of 

•i  i  •      absent 

and  are  present,  and  some  of  the  children  are  absent,  in  child  or 
a  state  of  total  absence  (Ghaibeti  Munkataa),  his  land  parent* 
shall  be  given  to  those  existing  and  present  (101)  ;  but  if 
the  absent  one  appears  within  three  years  from  the  date 
of  the  death  of  his  father  or  mother,  or  if  it  is  proved 
that  he  is  alive,  he  takes  his  share  in  such  land.     The 
procedure  with  regard  to  father  and  mother  is   the 
same  as  this  (102).     (See  note  to  Art.  54.) 

57.  The  land  of  a  person  who  has  been  absent  in  a  Right  of 
state  of  total  absence  (Gaibeti  Munkataa)    for  three  of  absent 
years,  and  whose  existence  or  death  is  unknown,  shall,  owner- 
as  stated  in  the  preceding  article,  be,  inherited  by  his 
children,  if  he  has  no  children,  by  his  father,  and  if  he 

has  no  father,  by  his  mother.  If  he  has  none  of  these 
it  becomes  the  right  of  Tapu,  that  is  to  say,  if  there 
are  any  persons  possessing  the  right  to  Tapu  as  stated 
hereafter,  it  shall  be  conferred  on  them  for  the  Tapu 
value  (Misl),  if  there  are  none/  by  auction  on  the 
candidate  (103).  (See  note  to  Art.  54.) 

58.  The  land  of  the  father,  mother  «or  children  of  a  Privilege 
person  who  is  a  soldier  in  the  Imperial  Army,  and  who 

is  actually  serving  in  the  army  in  another  country, 
shall  be  inherited  by  him  whether  his  existence  be 
known  or  whether  he  be  absent  in  a  state  of  total 
absence  (Gaibeti  Munkataa),  and  such  land  cannot  be 
conferred  on  any  person  unless  his  death  be  legally 


30  The  Ottoman  Lund  Code. 

Privilege     proved  ;  if  it  has  been  conferred,  such  person,  at  what- 
L  to  lands.  ever  time  he  appears,  has  the  power  to  take  possession* 
of  the  land  which  he  has  inherited  by  taking  it  frem 
whoever  he  may  find  in  possession.     But  in  order  to 
secure  the  taxes  due  on  the  land,  if  he  has  no  relations 
or  trustees  to  manage  his  property,  it  may  be  given 
Taxes.        to  another  person  to  be  cultivated,  and  by  whom  the 
taxes  due  on  it  shall  be  paid   (104).     (See  note  to 
Art.  54.) 


CHAPTER  IV. 

CONCERNING   THE   MAHLULAT   (VACANCY,   ESCHEATION) 
OF    ARAZI    MIRIE    (105). 

59.  If  the  owner  of  land  die  without  leaving  child-  Death  of 
ren,  father  or  mother,  his  land  shall  be  given  : —  without 

children 

i.  To  his   brother   by   the   same   parents  or  by  surviving. 
the  same  father  for  its  Tapu  value  (Misl),  that  is  Right  of 
to  say  for  a  value  fixed  by  impartial  experts  who  and  consan- 
know  its  productive   power  according  to   locality  frother* 
and  its  extent,  number  of  donums,  and  boundaries. 
This  heir  has  during  ten  years  the  right  to  claim 
this  land  and  to  demand  its  restitution. 

ii.  If  he  has  no  brother  by  the  same  parents  or  Right  of 
the  same  father,  it  shall  be  given  to  his  sister  by  andconsan- 
the   same   parents   or  by  the  same  father  for  its  guinec*» 

J  sister. 

Tapu  value,  whether  she  resides  or  not  in  the 
town  or  village  where  the  land  is  situated.  Her 
right  to  vindication  extends  to  five  years. 

iii.  If  he  has  no  sister  by  the  same  parents  or 
by  the  same  father,  it  shall  be  given  for  its  Tapu 


32 


The  Ottoman  Land  Code. 


Right  of 
grand- 
children, 
i.e.  children 
of  pre- 
deceased 
son. 

Right  of 
husband  or 
wife. 


Right  of 
uterine 
brothers 
and  sisters. 


Right  of 
grand- 
children, 
i.e.  children 
of  pre- 
deceased 
daughter. 


Right  of 
owner  of 
Mulk  trees 
or  build- 
ings. 


value  in  equal   portions  to  the  male   and   female 
children   of  the  son.      Their  right   of  vindication* 
extends  to  ten  years.  • 

iv.  If  there  are  no  male  or  female  children  of  the 
son,  it  shall  be  given  for  its  Tapu  value  to  the 
surviving  husband  or  wife.  Their  right  to  vindi- 
cation is  for  ten  years. 

v.  On  failure  of  surviving  husband  or  wife,  it  shall 
be  given  for  its  Tapu  value  and  in  equal  portions 
to  the  brothers  and  sisters  by  the  same  mother. 
Their  right  to  vindication  extends  to  five  years. 

vi.  On  failure  of  brother  or  sister  by  the  same 
mother,  it  shall  be  given  for  its  Tapu  value  and 
in  equal  portions  to  the  male  and  female  children 
of  the  daughter.  Their  right  of  vindication  lasts 
five  years. 

vii.  On  failure  o'f  these,  if  on  the  land  there  are 
Mulk  trees  or  buildings,  the  said  land  shall  be 
given  for  its  Tapu  value  and  in  equal  portions  to 
the  persons  who  inherit  the  trees  or  buildings. 
Their  right  of  vindication  extends  to  ten  years. 
There  are  no  other  persons  than  the  above  who, 
being  relations,  possess  the  right  of  Tapu  (106). 

viii.  On  failure  of  heirs  included  in  the  above 
categories,  the  land  is  given  for  its  Tapu  value 


Land  Lazv. 


o  o 


to   the   partners   or   co-interested.     Their  right   to 

vindication  is  for  five  years  (107). 

• 

ix.  On   failure  of  partners  or   co-interested,   the  Disposal  of 
land  is  given  for  its  Tapu  value  to  inhabitants  of  failure  of 
village  in  which  it  is  situate'who  have  need  of  it.  heirs'  &c* 
Their  right  of  vindication  is  for  one  year.     If  several 
inhabitants  of  the  said  village  have   need   of  the 
land  and  all  of  them  are  candidates  for  the  land 
which   has   become    the   right   of  Tapu   as   above 
stated,  the  said  land  shall  be  divided,  if  there  be 
no    inconvehiency   in   it,   and    each   person    shall 
receive  the  grant  of  a  share.     But  if  the  land  is  not 
susceptible  of  division,  or  if  there  be  any  objection 
to  its  division,  it  shall  be  given  to  the  person  to 
whom  it  is  most  necessary.     If  all  have  an  equal 
want  of  it,  it  shall  be  given  to  the  one  amon. 
them  who  has  served  personally  and  actively  in  the  Privilege 
army,  and,  having  served  his^tirne,  has  returned  to  ° 
his  home.     On  the  failure  of  a  person  with  these 
qualifications  lots  shall  be  drawn,  and  the  land  shall 
be  given  to  him  to  whom  fate  has  given  it. 

After  it  has  been  thus  a  warded,, the  land  cannot  Finality  of 
in  any  way  be  demanded  or  claimed  by  any  other  av 
person  (108).     (See  note  to  Art.  54.) 

60.  If  the  owner  of  the  land  has  died  without  leav- 
ing heirs  who  possess  the  right  of  inheritance,  that  is, 
children,  father  or  mother,  also  no  person  possessing 

D 


34  The  Ottoman  Land  Code. 

On  cessor    the  right  of  Tapu  (109)  as  above  mentioned,  or,  i ; 

Tapufland  having  left  any,  they  lose  their  right  of  Tapu  in  the 

MahiuT      ^anc^  ky  abstaining  from  taking  it  for  its  Tapu  valu*, 

the  land  then  becomes  simple  Mahlul  and  shall  be 

conferred  by  auction  *  on  the  candidate  (110).    But  if 

the  persons  possessing  the  right  of  Tapu  are  minors 

Protection  or  insane,  the  losing  of  their  right,  either  by  them- 

hmatics,  '   selves  or  by  their  parents  or  guardians,  is  not  valid 

(111).     (See  note  to  Art.  54.) 

NOTE.* — Concerning  a  non-Mussulman  wily'ect  also  taking  part 
on  an  equal  scale  in  such  auction.    See  Law,  dated  7.  Muharem,  1293. 

Period  for       61.  The  period  fixed  for  the  above  persons  possess- 

assertion  .  . 

of  right  to  mg  the  right  to  Tapu  to  vindicate  it,  commences  from 
the  date  of  the  death  of  the  owner  of  the  land,  and 
during  that  time  whether  the  land  has  been  given  to 
another  person  or  not,  the  said  persons  may  have  it 
granted  to  them  by  the  Government  on  paying  the 
Tapu  value  at  the  time  of  their  claim.  After  these 
periods  have  expire^'  or  the  said  persons  have  lost 
their  rights  their  claims  cannot  be  admitted.  The 
disabilities  such  as  minority,  insanity,  or  absence  on  a 
journey  in  a  distant  country,  are  not  valid  in  actions 
for  vindication  o'f  the  right  to  Tapu,  even  if  for  these 
reasons  they  allow  the  periods  fixed  to  lapse.  On  their 
lapsing,  the  right  to  Tapu  is  lost  (112).  (See  note  to 
Art.  54.) 

62.  If  one  of  the  persons  who  possess  the  right  to 
Tapu  in  equal  degree  with  others  suffers  the  forfeiture 


Land  Lazv.  35 


of  the  right  by  refusing  to  take  for  its  Tapu  value  Forfeiture 
'Iris  share  of  the  vacant  laud,  the  other  may  take  the  person  (.1 
whole  of  the  laud  for  its  Tapu  value  (113).     (See  note  jf^to 
to  Art.  54.) 

63.  If    it   has   not   been   possible   to   transfer   the  Sale  sub- 
vacant  land  to  the  possessors  of  the  right  to  Tapu  on  rights  of 
account  of  their  being  minors,  insane  or  travelling,  in  a  J^Ttics 
distant  country,  its  Tapu  will  not  be  delayed,  but  on  &c- 
the  understanding  that  the  former  according  to  their 
degree  have  power  to  claim  it  within  the  time  fixed, 

it  will  be  given  to  the  possessor  of  the  right  to  Tapu 
of  a  like  or  lower  degree,  if  any,  for,  as  is  customary, 
its  Tapu  value.  If  there  are  none,.or  the  right  has 
been  allowed  to  lapse,  it  will  be  put  up  to  auction 
and  given  to  the  candidate  (114).  (See  note  to 
Art.  54.) 

64.  If  one  of  the  first  degree  of  the  nine  classes  of  Successive 
possessors  of  the  right  to  Tapu  abstains  from  taking  the  pgf  "ns  °f 
land  to  which  he  has  a  right  to  Tapu  for  its  Tapu  entltled- 
value  and  allows  his  right  to  lapse,  it  is  offered  to  those 

t  in  the  second  degree,  and  if  they  abstain  it  is  offered  in 
turn  to  every  degree  up  to  the  last,  and  if  they  all  ab- 
stain then  it  is  given  by  auction  to  the  candidate  (115). 
If  one  of  the  possessors  of  the  right  to  Tapu  dies  before 
Tapuing  the  land  to  which  he  has  a  right  to  Tapu,  his 
right  to  Tapu  does  not  revert  to  his  children  and  other 

\  heirs  (116).     (See  note  to  Art.  54.) 

D  2 


36 


The  Oi  toman  Land  Code. 


Ki-ht  of  65.  If  the  possessors  of  the  right  to  Tapu  are  minors, 
of  infanT  insane>  or  imbecile,  and  if  it  be  any  advantage  to  them, 
or  lunatic,  their  parents  or  guardians  may  take  the  land  to  whick 

they  possess  a  right  to  Tapu  for  its  Tapu  value  (117). 

(See  note  to  Art.  54.) 


huk) 


Preferen-  66.  If  the  owner  of  land,  on  which  there  are  Mulk 
trees  anc^  buildings  belonging  to  a  stranger  (a),  and 
wnich  *s  cultivated  and  possessed  in  subjection  to  those 
trees  and  buildings,  dies  (b)  without  having  anyone  who 
possesses  the  right  to  Tapu  aforementioned,  the  owner 
of  the  trees  and  buildings  shall  have  the  preference  to 
any  other,  and,  if  he  desires,  it  shall  be  transferred  to 
him  for  its  equivalent  value  (Bedel  Misl),  and  if  with- 
out being  oifered  to  him  it  has  been  given  to  another 
he  shall  have  the  right  to  claim  it  for  ten  years  for  the 
equivalent  value  (Bedel  Misl)  ^at  the  time  of  claim  (118). 
(See  note  to  Art.  54.) 

NOTE.(")  —  Tire  causes  of  a  stranger's  possession  in  this  way  are 
given  in  Art.  35.  (b)  According  to  Art.  44,  even  if  the  owner  is 
alive  he  cannot  sell  the  land  to  someone  e/sf,  he  must  alienate  it  to 
that  person. 


Privilege 


67.  To  persons  who  have  the  right  to  Tapu,  and 
who  are  soldiers  who  are  proved  to  have  served 
actually  and  personally  in  the  ranks  of  the  Kegular 
Army  (Asaker  Nizamie),  five  donums  of  the  land  to 
which  they  possess  the  right  to  Tapu  shall  be  given 
gratis  and  without  payment  of  value  (Bedel)  :  for  any 


Land  Law.  37 


excess  over  five  donums  the  provisions  of  the  law  with 
regard  to  other  possessors  of  the  right  to  Tapu  shall 
be?  carried  out  (119).  (See  note  to  Art.  54.) 

68.  If  the   owner   of   any   arable    land    does   not  Disposal 
cultivate  it  himself  or  cause  it  to  be  cultivated  by  ian(i. 
another  by  lending  or  letting  it,  but  allows  it  to  lie 
fallow  for  three  successive  years  without  having  proved 
any  valid  excuse,  such  as  allowing  it  to  rest  for  one  or 
two  years  according  to  its  degree  of  capability,  or  for 
more  than  one  or  two  years  in  an  exceptional  case 
according  to  locality  (120),  or  the  necessity  of  leaving 
it  fallow  until  it  has  acquired  the  power  of  cultiva- 
tion  (121)  after  the  water  which  iaundated  it  for  a 
time   has  receded,  or  being  a  prisoner  of  war,  such 
land,  whether  the  owner  be  in  the  place  where  the  land 
is  or  at  a  distance  travelling  (122),  becomes  the  right 
of  Tapu.     If  the  former  owner  wishes  it  to  be  trans-  Recovery 
ferred  to  him  again  it  may  ba%  transferred   to  him  iost*n< 


for  its  equivalent  value  (Bedel  Misl).     If  he  does  not 
wish   it,   then   it   is    transferred    by  auction   to   the 

candidate  (123). 

• 

69.  Land   belonging   to   anyone  which  for  a  long  Right  of 
time  has  been  inundated,  and  from  which  the  water  owTe^to 

has  receded,  does  not  become  by  this  fact  the  right  land  which 

m  has  been 

01   lapu,  the   ancient   owner   takes   possession   of  it  flooded. 

as    before   (124).      If    the    old    owner  is   dead,  his 
children,  father  or  mother  take  possession  of  it;  on 


The  Ottoman  Land  Code. 


Disposal  of  failure  of  these  the  right  to  Tapu  shall  be  given  for 

has  been*     ^s   Tapu   value   to   the  owner  thereof  (125).     After 

flooded.       foe   water  has   receded   and   the  land  has  acquired 

the  power  of  cultivation,  if  the  owner,  or  those  who 

have  got  the  right  of  inheritance  (Hak  Intikal)  as 

aforesaid  do  not  utilise  it,  and  without  excuse  leave 

it    uncultivated    during    three    successive    years,   it 

shall  then  become  the  right  of  Tapu.     (See  note   to 

Art.  54.) 

Preserva-  70.  If  a  person,  after  having  abandoned  his  land  for 
rights  of  ^wo  consecutive  years  without  excuse,  alienates  it 
alienee  or  |o  another,  or  dies,  and  his  children,  father  or  mother 

heirs. 

inherit  it,  and  the  alienee  or  those  who  have  the 
right  of  inheritance  also  leave  it  uncultivated  without 
excuse  for  the  following  one  or  two  years,  that  land 
does  not  become  the  right-  of  Tapu.  (See  note  to 
Art.  54.) 

Heirs  to  71.  If  the  possessor  of  lands  which  have  been  proved 
vaLl  of**  ^°  nave  been  left  uncultivated  without  excuse  for  three 
untiiied  consecutive  years,  as  aforesaid,  dies  at  the  end  of  three 

land  in  * 

certain  years,  before  the  land  has  been  given  to  another  by  the 
official,  and  leaves  children,  father  or  mother,  the 
lands  will  not  be  inherited  by  the  latter  gratis,  but 
they  will  be  offered  to  them  for  the  Tapu  value, 
and  in  case  they  refuse,  or  if  the  said  possessor  has 
died  without  heirs  having  the  right  to  inheritance, 
they  will  be  put  up  to  auction  and  will  be  given  to 


Land  Law.  39 


the  bidder  (120)   without  tho  possessor  of  the  right 
to  Tapu  being  sought  for.     (See  note  to  Art.  54.) 


7*2.  If  all  or  part  of  the  inhabitants  of  a  town  or  Abandoned 
village  quit  the  place  for  legitimate  reasons,  the  land 
belonging  to  them  does  not  become  the  right  of 
Tapu,  but  if  the  abandonment  of  the  country  take 
place  without  valid  motive,,  or  if  the  inhabitants  do 
not  return  within  three  years  from  the  time  when  the 
legitimate  reasons  which  forced  them  to  quit  have 
ceased,  and  if  they  thus  leave  the  land  uncultivated, 
it  shall  then  become  the  right  of  Tapu. 

73.  Land  belonging  to  a  soldier  in   the  Imperial  Preserva- 
Army  who  is  actually  and  personally  employed  in  the  r"hts  of 


military  service  in  another  country,  whether  the  land  militar.v- 
be  cultivated  by  letting  or  lending  it,  or  whether  it 
remain  in  statu  quo  and  non-productive,  shall  not 
become  the  right  of  Tapu  so  -long  as  the  decease  of 
the  owner  shall  not  have  been  proved.  If  by  chance 
it  has  been  given  to  another,  the  soldier  on  returning 
to  his  home  after  the  end  of  his  time  of  service  may 
take  it  from  whomsoever  may  hold  if  (127). 

74.  If  a  person  whose  existence  is  known,  and  who  Disposal  of 
is  travelling  in  another  country,  inherits  land  from  his 
parents  or  children,  and  if  he  does  not  come  himself  to 
cultivate  the  land  he  has  inherited,  or  does  not  depute 
in  writing  or  otherwise  some  one  to  cultivate  it  and 


4O  The  Ottoman  Land  Code.  ,  > 

leaves  it  idle  for  three  successive  years  without  excuse, 
such  laud  becomes  the  right  of  Tapu.  (See  note  to 
Art.  54.) 

Devolution      75.  If  at  the  death  of  the  owner  of  the  laud  it  is 

wheTheir   unknown  whether  the  absent  (Gaibeti  munkataa)  (128) 

is  absent.    neirs  possessing  the  right  of  inheritance  (Hak  Inti- 

kal),  be  dead  or  alive,  the  said  land  becomes  the  right 

of  Tapu.    If,  however,  the  heir  appears  within  three 

years,    counting   from   the    day   of    the    decease    of 

the  person  from  whom  he  inherits,  he  has  the  right 

to   take,  free  of  expense,  possession  of  the  land ;   if 

he  does  not  appear  before  the  end  of  this  term  he  is 

no  longer  able  to  ckdin  it. 

Manage-  76.  Land  belonging  to  minors,  idiots  or  imbeciles 
lamfbe-  cannot  in  any  case  become  the  right  of  Tapu  on 
longing  to  account  of  not  being  cultivated.  If  the  guardians 

minors, 

idiots,  &c.  without  excuse  do  not  cultivate  it  themselves  or  cause 
it  to  be  cultivated  by  others  for  three  successive 
years,  the  said  guardians  will  be  invited  by  the  Official 
(Memour)  to  cultivate  it  themselves  or  to  have  it 
cultivated  by.oth'ers.  If  they  abstain  or  refuse  to 
cultivate  it,  with  the  sole  object  of  preserving  it  from 
a  state  of  non-cultivation,  the  land  shall  be  let  by  the 
Official  to  whoever  wants  it  for  its  equivalent  rent 
(Ijare-i-Mislie) ;  the  rent  fixed  to  be  paid  by  the  tenant, 
shall  be  paid  to  the  guardians  for  the  minors,  idiots, 
or  imbeciles.  After  attaining  their  majority,  or  after 


Land  Law.  41 


recovering  their  senses,  they  can  take  back  the  lands 

from  the  hands  of  the  tenant  (129). 

• 

77.  If  it  be  proved  that  a  possessor  of  the  right  to  Disposal  of 
Tapu   of  the  first   degree,  without   having   obtained  Case  of 
the  vacant  land   from  the  Government,  conceals  and  lllesal . 

possession. 

holds  it  unlawfully  for  a  time  less  than  ten  years, 
the  land  shall  be  granted  to  him  on  his  paying  its 
Tapu  value  at  that  time.  If  he  does  not  wish  it,  it 
will  be  granted  to  another  possessor  of  the  right  to 
Tapu,  if  any,  for  whom  the  delay  fixed  according  to 
his  degree  shall  not  have  passed.  If  there  are  none, 
or  if  there  are  any  who  have  lost  their  right,  it 
shall  be  put  up  to  auction  and  gwen  to  the  candi- 
date.* If,  as  above,  the  person  proved  to  have  held 
and  cultivated  unlawfully  for  less  than  ten  years  be 
a  stranger,  the  land  shall  be  taken  from  him  and 
granted  to  the  possessor  of  the  riglit  to  Tapu  for  its 
Tapu  value  at  that  time  (130)^  If  there  be  no  pos- 
sessor of  the  right  to  Tapu  or  if  he  has  lost  his  right, 
it  shall  be  given  by  auction  to  the  candidate.  (See 
note  to  Art.  54.) 

NOTE.* — Concerning  a  non-Mussulman  subject  also  taking  part 
on  an  equal  scale  in  such  auction,  see  Law  dated  7.  Muharem,  1203, 
and  though  the  auction  should  be  carried  out  in  accordance  with 
Art.  18  of  the  Tapu  Law.  the  said  article  has  been  amended  by  a 
fresh  article  dated  27.  Sheval,  1303. 

78.  If  a  person    has    possessed    Arazi   Mirie  and  Acquisition 
Mevkufe  for  ten  years  without  disturbance   his  pre-  lengthTof 

possession. 


42  The  Ottoman  Land  Code.  *  • 

scriptive  right  (Hak  Karar)  becomes  proved,  and 
whether  he  has  a  title-deed  or  not  such  land  cannot  be 
looked  upon  as  Mahlul,  but  a  new  Tapu  Sened  should 
be  given  to  him  gratis.  But  if  he  admits  that  such 
land  was  Mahlul  and  he  took  it  without  right,  no 
consideration  will  be  paid  to  the  passage  of  time,  but 
the  land  will  be  offered  to  him  for  its  Tapu  value, 
and  if  he  refuses  it  will  be  sold  by  auction  to  the 
candidate  (131). 

Rights  of        79.  Nothing  shall  be  claimed  as  rent  (Ijri  Misl)  or 

hddswTth- as   Decreased  value  of  land  (Noksan  Arz),  from  any 

out  legal    person   who   has   arbitrarily   taken   vacant   (Mahlul) 

lands,  Mirie  or  Mevkufe,  and  has  cultivated  them,  as 

is  mentioned  in  the  two  preceding  articles,  and  has 

paid  the  taxes  due  by  the  land  (132). 

Ownership      80.  If  the  owner  of  an  arable  field  dies  after  hav- 

sown°r      iRg   sown   ^  without  leaving  heirs  who  possess  the 

deceased     right  of  inheritance  (JIak  Intikal),  and  the  said  field 

(embie-      has  been  granted  by  the  Official  to  the  person  possess- 

ts)'      ing  the  right  to  Tapu,  or  to   any   other   candidate, 

the  crops  growing  on  that  land  will  be  considered  as 

part  of  the  estate 'of  the  deceased,  and  the  person  who 

takes  the  land  has  no  right  to  have  them  pulled  up 

nor  to  claim  any  fee  from  the  heirs.     It  will  be  the 

same  thing  with  the  grass  which  grows  by  cultivation 

or  irrigation.     As  to  the  grass  which  grows  naturally 

without  the  intervention  of  the  work  of  the  deceased, 

it  will  not  go  to  the  heirs. 


Land  Law.  43 


81.  On  the  death  of  the  owner  of  the  vineyards  and  Osvnership 
gardens  created,  and  the  freehold  (ILulk)  Buildings  yards,  &c., 
erected  on  Arazi  Mirie  possessed  by  Tapu,  on  which 


freehold  Hlulk)   trees  and  vines   have   subsequently  ings  erected 

,  by  deceased 

been  planted  with  the  permission  of  the  official  tenant. 
(Meraour),  such  trees,  vines  and  buildings,  after 
having  been  inherited  like  other  property  by  the 
heirs  of  the  deceased,  the  only  fee  taken  shall  be 
succession  duty  on  the  assessed  value  of  the  sites  of 
such  buildings,  trees  and  vines.  The  land,  in  propor- 
tion to  the  share  of  the  trees,  vines  and  buildings 
which  falls  to  each  heir,  shall  be  transferred  to  them 
gratis,  and  on  the  records  in  the  Imperial  Defter 
Khane  (133)  being  corrected,  a  riote  will  be  written 
in  the  margin  of  the  title-deeds  which  are  kept  (134). 

XOTE.  —  The  authority  ofjhe  sentence  "a  note  will  be  ivritti, 
the  iKurtjin  of  the  title-deeds  u'hich  are  kept"1'  turitten  in  this  article 
is  annulled  in  accordance  v:ith  Art.    3  of  the  Instructions,  dated 
7.  oAa&tm,  1276,  concerning  Ta^u 


82.  If  mills,  enclosures,  sheepfolds   or  other  free-  Disposal  of 
hold  (Mulk)  buildings,  constructed  on  Arz  3Iiri  held  fon^« 
by  Tapu,  are  in  ruins  and  leave  no  sign  of  construction,  ™^  and 
the  site  of  such  buildings  becomes  the  right  of  Tapu.  erections. 
It  shall  be  granted  to  the  owner  of  the  buildings  if  he 
ask  for  it,  if  not,  it  shall  be  given  to  another.     But  if 
such    lands   shall   have   previously   passed    into   the 
possession  of  the  owner  of  these  buildings  by  inherit- 
ance or  otherwise,  and  if  he  is  paying  their  fixed  rent 


44  The  Ottoman  Land  Code.  ,  • 

(Ijarei  Maktuaa)  to  the  Government,  such  lands  can- 
not be  taken  away  from  him  nor  opposition  shown  to 
his  possession  (135).  (See  note  to  Art.  54.) 

Disposal  of      83.  If  any  of  the  trees  and  vines  of  gardens  and 

former       vineyards,  created  by  planting  trees  and  vines  freehold 

vineyards.   (]\|uik)  on  Arz  Miri  held  by  Tapu,  become  dry  or  are 

pulled  up,  and  if  no  traces  of  them  remain,  the  ground 

becomes  the  right  of  Tapu.    It  shall  be  given  to  the 

owner  of  the  said  trees  and  vines  if  he  wish  it,  if  not, 

it  shall  be  given  to  some  other  candidate.     But  if  the 

Devolution  janc[  of  sucn  category  was  previously  inherited  from 

sites.          parents  or  children,  or  was  by  other  means  formerly 

in  the  possession  of  'the  owner  of  the  trees  and  vines, 

it  shall  not  be  taken  out  of  the  hands  of  the  possessor, 

nor  shall  any  objection  be  made  to  his  possessing  it 

(136).     (See  note  to  Art.  54.)      . 

Disposal  84.  Any  summer  (,yaylak)  or  winter  (kishlak) 
Pasturage  held  by  Tapu,  which  without  excuse  shall 
not  have  been  occupied  during  the  season  for  three 
consecutive  years,  and  of  which  the  dues  have  not 
been  paid,  shall  become  the  right  of  Tapu  (137). 

Disposal  of  85.  If  a  meadow  (Chayir)  held  by  Tapu,  and  on 
whose  produce  tithe  has  been  taken  ab  antique, 


held  by       remains    idle    for   three    consecutive   years    without 

lapu; 

excuse,  and  the  grass  is  not  reaped  and  the  tithe  is 
not  paid,  it  becomes  the  right  of  the  Tapu  (138). 


Land  Law.  45 

86.  If  at  the  time  when  a  possessor  of  the  right  to  Paramount 

»    m  ,       rights  of 

Tapu  is   about   to  receive  the   land   by  paying  the  person 
Tapu  value  a   stranger   presents   himself  and   offers 
more  than  the  Tapu  value,  no  attention  is  to  be  paid 
to  this  offer  (139).     (See  Note  to  Art.  54.) 

87.  If,  after  vacant    (Mahlul)    Mirie   or   Mevkufe  Rights  of 
land  has  been  transferred  to  a  person  for  its  equivalent  bidder  for 
value    (Bedel   Misl)   ascertained   at   auction,  another  J? 
person  appears  and  offers  a  higher  price,  no  interfer- 
ence can  be  made  with  the  former  on  the  ground  that 

the  Sened  has  not  yet  been  issued,  and  the  land 
taken  over  by  him  cannot  be  taken  away  from  him. 
But  if,  after  the  vacant  land  (Arazi  Mahlule)  has  been 
*  transferred  to  a  person,  it  becomes  evident  and  proved 
that  it  has  been  transferred  for  a  much  less  price 
than  its  Tapu  value,  such  person  will  be  required 
to  complete  its  Tapu  Value  at  the  time  of  transfer 
within  ten  years  from  the  date  of  transfer,  and  if  he 
does  not  do  so  the  amount  paiA  by  him  before  will  be 
returned  to  him  and  the  land  transferred  to  a  person 
who  wishes  it.  If  ten  years  from  the  date  of  transfer  Acquisition 
have  elapsed,  such  person  will  not  be  disturbed,  and  ]^l^J 
*  the  land  taken  over  by  him  will  not  be  taken  away  time 
from  him.  The  same  procedure  will  also  be  followed 
with  regard  to  Arazi  Mahlule  which  has  been  trans- 
ferred to  a  person  possessing  the  right  to  Tapu  (140) 
for  its  Tapu  value. 

88.  The  person  employed  as  a  Tapu  official  in  a 


46  The  Ottoman  Land  Code. 

•  * 

Disabilities  Kaza    cannot    during   the   time   of    his   employment 
official  and  take  over  vacant  land  (Mahlule),  or  land  which  be- 
reiatives     comes  the  right  of  Tapu,  nor  can  he  hand  it  over  to 
his    children,   brother,   sister,    father,    mother,    wife, 
servant,  slave  and  dependents,  but  if  he  becomes  the 
possessor  of  land  inherited  from  his  father,  mother,  or 
children  (141),  or  if  he  is  the  possessor  of  the  right  to 
Tapu  he   can   take   over   the  land  in  the  customary- 
manner  through  the  medium  of  the  Tapu  official  of 
another  Kaza.     (See  note  to  Art.  54.) 

Disposal  of     89.  Buildings,  the  site  of  which  is  Arz  Miri,  and 

areeSATz1C   the  edifice  vakf  to  an  object  having  become  ruined, 

f^iu  °n  f    an(^  a^er  no  sign  °f  building  remains,  if  the  trustee 

trustee  to    (Mutevelli)  does  not  repair  them  and  also  does  not 

pay  the  ground  rent  (Ijarei  Zemin)  to  the  Govern- 

ment,  such   sites  shall   be   taken   out   of  the  hands 

of   the   Mutevelli   and   given  'to  the  candidate.      If 

the  Mutevelli  repairs  them  or  pays  the  fixed  ground 

rent  (Mukatai  Zemin)' to  the  Government,  he  shall 

not  be  interfered  with,  and  they  shall  be  left  in  his 

hands.     The  same  procedure   shall  also  be  followed 

in  places  where  the  site  is  Arazi  Mevkufe  and  the 

building  vakf  to  another  object  (142). 

NOTE.— See  Note  to  Art.  90. 

Disposal  of  90.  Gardens  and  vineyards,  the  site  of  which  is 
sites  on"  Arz  Miri,  and  the  vines  and  trees  vakf  to  an  object 
failure  of  havinor  become  ruined,  and  after  no  sign  remains  of 

trustee  to 
cultivate. 


Land  Law.  47 


the  trees  and  vines,  if  the  person  who  is  Mutevelli  of 
the  vakf  does  not  cultivate  the  land  without  excuse 
fyr  three  consecutive  years,  and  does  not  bring  it 
back  to  its  original  state  by  planting  trees  and  vines, 
such  lands  become  the  right  of  Tapu.  The  same 
procedure  will  be  followed  with  places  of  which  the 
site  is  Arazi  Mevkufe,  and  the  trees  and  vines  vakf  to 
another  object. 


.  —  It  has  been  notified  by  a  Mazbata  of  the  Mejele  Com- 
mission approved  by  Imperial  Trade,  dated  22.  Muharem,  1300, 
that  in  the  event  of  a  case  between  the  Beit  ul  Mai  and  a  Vakf 
relating  to  the  servitude  of  the  land,  the  claim  of  the  Muteveli  of 
the  Vakf  will  be  heard  up  to  36  years. 


48  The  Ottoman  Land  Code. 


BOOK  II. 

CHAPTEE'I. — AEAZI  METEUKE. 
CHAPTER  II. — AEAZI  MEVAT. 

CHAPTER  I. 

ARAZI   METRUKE    (144). 

Law  as  to  91.  The  trees  of  woods  and  forests  called  "  Baltalik," 
of*Baltalik  devoted  specially  ah  antiquo  for  tlie  benefit  and  for 
woods  and  ^e  SUppiy  of  Woo,d  to  a  town  or  village,  shall  be  cut 
only  by  the  inhabitants  of  such  town  and  village ;  the 
inhabitants  of  no  other  town  and  village  have  the 
right  to  cut  the  wood.  The  trees  of  woods  and  forests 
devoted  specially 'for  the  benefit  and  for  the  supply 
of  wood  ab  antiquo  to  several  villages,  likewise  shall 
be  cut  only  by  the  inhabitants  of  such  villages ;  the 
inhabitants  of  other  villages  cannot  cut  them.  There 
is  no  tax  (145)  for  this  category  of  woods'  and  forests. 

NOTE. — See  No.  3(>.  In  accordance  with  the  Regulations,  dated 
23.  Muharem,  1293,  Destur,  Vol.  III.,  p.  300,  if  it  is  ascertained 
that  the  woods  and  forests  left  to  the  inhabitants  of  villages  or 
towns  are  more  than  their  requirements,  and  the  surplus  does  not 
belong  to  anybody  by  title-deed,  it  will  be  considered  as  JibalMubah 
and  taken  under  administration.  In  accordance  with  Art.  25  of 
the  Forest  Law,  dated  11.  Sheval,  1286,  Destur,  Vol.  1L,  p.  404, 
tithe  "'ill  be  taken  on  the  planks  cut  for  trade  by  the  inhabitants  of 
the  villages  from  the  said  Baltalyks. 


Land  Law.  49 


92.  Part  of  the  woods  and  forests  devoted  specially  Public 


'to   the   inhabitants   of  villages  cannot   be  separated  fo^t  not 


a*d  granted  to  a  person  by  Tapu  to  be  held  by  him 
singly  or  in  partnership  for  the  purpose  of  open-  encroached 
ing  it  for  cultivation  or  for  making  it  into  a  wood. 
If  there  be  anyone  who  does  so  possess  a  part  of  a 
wood  or  forest,  the  inhabitants  have  at  all  times  the 
power  to  prevent  him  from  doing  so 


93.  No  one  can  erect  buildings  or  plant  trees  on  a  L?\V 
public   road.     If  anyone   does  do   so  they   shall 
demolished  or  pulled  up.     In  fine,  a  person  can  in  no  highwa.vs- 
wise  have  possession  of  the  public  road,  if  anyone  has 

he  shall  be  stopped  (147). 

94.  Places   within  or   without   a   town   or  village,  Law  for 
such  as  places  of  worship  (148)  and  squares  left  for  the  j^Tcf  *~ 
benefit  of  the  inhabitants  for  assembling  their  animals  Public 

spaces. 

or  putting  their  carts,  being  equivalent  to  public 
roads,  cannot  be  bought  or  sold,  nor  can  buildings  be 
erected  or  trees  planted  on  them.  Nor  can  they  be 
given  into  the  possession  of  a  single  person.  If  there 
be  anyone  who  does  possess  them,  the  inhabitants  can 
have  him  ejected  (149). 

95.  Places  registered  in  the  Imperial  Defter  Khane  Law  for 
as  having  been  left  and  assigned  ab  antique  for  market-  ^Tof  *" 
places  and  fairs  can  neither  be  sold  nor  bought,  nor  m*rket  an(- 

other  like 

can  Seneds  be  given  to  a  person  for  him  to  possess  places. 

E 


50  The  Ottoman  Land  Code. 

them  by  himself.  If  anyone  does  possess  them  he 

shall   be    ejected.  But   whatever    tax    is    registered 

for  places  of  this  category   shall  be  paid   into   tYie 
Treasury  (150). 


96.  Threshing- floors  left  and  assigned  db  antique  to 
public        the  inhabitants  of  a  village  in  general,  cannot  be  sold 
floors*111^    nor  c^earec^  anc^  given  up  to  agriculture ;  it  will  not 
be  permissible  to  erect  any  building  thereon,  and  the 
possession    by   Tapu   Sened   cannot   be   given   to    a 
person   singly   or   in   partnership.      If  anyone    does 
possess  it  the  inhabitants  can  have  him  ejected.     The 
inhabitants  of  another  village  cannot  transport  their 
crops  and  thresh  them  on  such  threshing-floor  (151). 

Presewa-  97.  A  Mera  reserved  db  antique  to  a  village  can 
common  onty  ^e  grazed  upon  by  the  animals  belonging  to  the 
pasturage,  inhabitants  of  that  village  ;  the  inhabitants  of  another 
village  cannot  drive  animals  there.  A  Mera  common 
ab  antique  to  the  inhabitants  of  two,  three  or  more 
villages,  can  be  grazed  upon  in  common  by  the 
animals  belonging  to  the  inhabitants  of  those  villages  : 
it  does  not  matter  in  the  boundaries  of  what  village 
it  may  be,  they  cannot  prevent  each  other  from  doing 
so.  Meras  reserved  ab  antique  to  the  inhabitants  of 
one  village  only,  or  in  common  to  the  inhabitants  of 
several  villages,  cannot  be  bought  or  sold,  enclosures, 
sheepfolds  and  other  buildings  cannot  be  made  on 
them,  they  cannot  be  created  into  vineyards  or 


Land  Law.  5 1 


by  planting  trees  or  vines.  If  anyone  has 
erected  buildings  or  planted  trees,  the  inhabitants 
can  at  any  time  have  them  demolished  or  pulled  up. 
Permission  cannot  be  given  to  anyone  to  break  them 
up  for  cultivation  like  other  arable  land.  If  anyone 
cultivates  them  he  will  be  ejected.  They  shall  remain 
Ueras  (152)  always. 

98.  Whatever  may  be  the  ab  antique  extent  fixed  Limits  of 
of  the  land  left  and  considered  to  be  pasture  land,  this  f^Juo  be 
fixed  extent  of  land  is  called  the  pasture  land,  and  no  Preserved- 
regard  will  be  paid  to  boundaries  fixed  subsequently 
(153). 


99.  Whatever    may    be    the    number    of    animals  Past. 
belonging  to  a  Chiftlik  situated  in  a  village  or  town  °ot  to  ^ 
whose  animals  have  pastured  ab  antiquo  on  the  pasture  t 
land  of  that  village  or  town,  that  number  of  animals 
cannot   be   prevented   from   pasturing.     But   pasture 
lands   other   than    those    of    the    town    and   village 
reserved    specially   ab    antiquo    to   this   category   of 
Chiftliks   are   not   Arazi    Metruke   like    the   pasture 
•  lands  left  and  reserved  ab  antiquo  to  the  inhabitants 
of  towns  and  villages.     In  Chiftlik  pasture  lands  of 
this  category  only  the  owner  pastures  his  animals,  and 
he  can  prevent  others  from  doing  so.     Chiftlik  3Ieras 
of  this  kind  are  possessed  by  Tapu  :  they  follow  the 
same  procedure  as  other   Arazi   Mirie  (154),  and  an 
annual  rent  equivalent  to  the  tithe  is  taken  for  them. 

E  2 


52  The  Ottoman  Land  Code.  ,  , 

Regulation  100.  Whatever  may  be  the  number  of  animals  pas- 
tured  by  an  inhabitant  of  the  village  on  the  Mera 
belonging  to  one  village  specially  or  to  several  villages 
collectively,  he  cannot  be  prevented  from  pasturing  in 
that  Mera  the  young  which  are  afterwards  born  of 
those  animals.  If  this  causes  crowding  to  the  animals 
of  the  inhabitants  of  the  villages,  no  inhabitant  of  the 
village  has  the  right  to  bring  additional  animals  from 
outside  and  pasture  them  there.  A  person  coming 
from  outside  and  establishing  himself  in  the  village 
by  building  a  new  house  (yurd)  may  bring  a  few 
animals  from  outside  and  pasture  them  on  the  pasture 
land  of  that  village,  on  condition  that  they  shall  not 
cause  crowding  or  want  of  food  to  the  animals  of  the 
inhabitants  of  the  village.  Whatever  may  be  the 
number  of  animals  pastured  by  an  inhabitant  of  the 
village  on  the  pasture  land  of  that  village,  the  person 
who  subsequently  buys  the  house  (yurd)  of  that  person 
cannot  be  prevented  from  pasturing  that  number  of 
animals  also  there  (155). 

Exclusive        101.  Only  the  inhabitants  of  the  villages  to  which 

asLi^ned      ^nev  are  assigned  shall  benefit  by  the  grass  and  water  « 

inf/kiTh     °^  yay^a^s  and  kishlaks,  assigned  ab  antique  to  the 

laks.          inhabitants  of  one  sole  village,  or  of  several  villages, 

and  registered  in  the  Imperial  Defter  Khane,  and  the 

inhabitants  of  other  villages,  being  strangers,  cannot 

benefit  therefrom.     Yaylakie  and  kishlakie  taxes  are 

taken  for  the  Treasury  from  the  persons,  according  to 


Land  La  53 

their  means,  who  profit  by  the  grass  and  water  of 
yaylaks  and  kishlaks  of  this  category.  And  these 
yaVlaks  and  kishlaks  assigned  to  the  inhabitants 
cannot  be  bought  or  sold.  And  they  cannot  be 
granted  into  the  possession  of  a  person  singly.  And 
they  cannot  be  cultivated  without  the  consent  of  the 
inhabitants  (156). 

102.  Attention  will  not  be  paid  to  prescription  in  x0  tr 
cases  regarding  Arazi  Metruke  such  as  Woods,  Forests, 


Public  Eoads,  Fair   and  Market  Places,  Threshino--  time  in 

0     respect  of 

floors,  Meras,  Kishlaks,  and  Yaylaks  which  have  been  public 
left  and  assigned  ah  antiquo  to  the  inhabitants  (157;. 


54  The  Ottoman  Land  Code. 


CHAPTER  II. 

ARAZI    MEVAT*    (158). 

Disposal  of      103.   Empty  (khali)    places,  such  as  Otlak  (160), 
pernallik   (43^  kimj   (159^      Tasini,  (stony  place)? 

and  Kuhi  (hill),  which  are  not  in  the  possession  of 
anybody  by  Tapu  (160),  and  which  ab  antiquo  are  not 
assigned  to  the  inhabitants  of  towns  and  villages, 
and  which  are  distant  from  a  town  and  Tillage,  so 
that  the  loud  voice  of  a  person  cannot  be  heard  from 
the  extreme  inhabited  point,  are  Arazi  Mevat ;  this 
category  of  land  can  be  opened  up  newly  and  created 
into  arable  land,' with  the  permission  of  the  official, 
gratis  by  the  person,  having  need  for  it,  on  condition 
that  its  servitude  shall  belong  to  the  Treasury  (Beit 
ul  Mai),  and  all  the  provisions  of  the  law  in  force 
concerning  other  cultivated  land  are  applicable  to 
lands  of  this  category  also. 

But  if  a  person  does  not  open  up  the  place  which 
has  been  taken  and  transferred  to  him  with  the  per- 
mission of  the  official  in  order  to  be  opened  up  as 

NOTE.* — The  provisions  of  the  religious  Jaw  in  force  regard  rm-j 
the  mode  of  re-vivifi  cation  of  Arazi  Mevat  are  given  in  Book  10  (f 
the  Mejele  "  Societies* 


Land  Lais.  55 


aforesaid,  and  leaves  it  for  three  years  in  its  past  state 
'without  valid  excuse,  it  shall  be  given  to  another.  If 
anyone  has  opened  up  and  created  into  arable  land 
any  of  this  category  of  land  without  permission,  the 
Tapu  value  of  the  place  opened  up  by  him  shall  be 
taken  from  him,  and  a  Tapu  Sened  (161)  shall  be 
given  on  its  being  transferred  to  him. 

104  Everyone  may  cut  wood  and  planks  from  the  Right  <>t 
mountains  and  "  balkans  "  called  Jibal  Mubah,  which  cut  wood 
are  not  woods  and  forests  assigned  to  the  inhabitants  °nmoun- 

tains  and 

ab  antique,  and  they  cannot  interfere  with  each  other  ;  hills  not 
and  tithe  is  not  taken  on  the  herbage  and  cut  trees 
coming  from  these.  And  a  portion  of  this  species  of 
Jibal  Mubah  cannot  be  separated  and  granted  by  the 
official  into  the  possession  of  anybody,  to  be  held  by 
him  solely  or  in  partnership  (162)  by  Tapu  in  order 
to  be  created  into  a  wood. 

NOTE. — The  authority  of  this  article  has  been  modified  by  the 
Forest  Law  dated  11.    Sheval,  1286. 


105.  If  there  be   a   grass  land  (otlak)  within   the  Ricrht  i  \ 
boundaries   of    a   village   besides    the   pasture    land  {JL  ua-tf 
assigned  to  the  inhabitants  of  towns  and  villages,  the  assign1^ld 
inhabitants  of  that  village  can  graze  their  animals  and 
benefit  by  the  grass  and  water  without  paying  any  tax. 
A  grass  land  tax  (resm  otlak)  of  a  suitable  amount 
will  be  taken  for  the  Treasury  from  persons  bringing 
animals  from  outside,  and  wishing  to  profit  by  the 


50  The  Ottoman  Land  Code. 

grass  and  water  of  that  grass  land,  and  the  inhabitants  t 
of  the  village  have  not  the  power  to  prevent  them,  nor 
do  they  take  any  share  in  the  tax  paid  (163). 

NOTE. — In  accordance  witli  Art.  43  of  the  Forest  Law,  a  fine  of 
1  piastre  per  head  will  ~be  taken  from  the  shepherd  who  drives 
animals  without  the  permission  of  the  official  to  Meras  on  restricted 
parts  of  Government  Forests.  The  procedure  to  l)e  followed  in  the 
event  of  the  animals  driven  to  these  Forests  not  belonging  to  the 
inhabitants  of  a  village  is  given  in  Art.  45  of  the  said  law. 


(     57     ) 


BOOK  III. 

MUTEFERIAT. 

106.  Trees    growing   naturally    on    Arazi    Mevat,  Ownership 
Metruke,  Mine,  Mevkuie,  and  Mernluke  cannot  be  held 
by  Tapu.     But  trees  growing  naturally  on  Arazi  Mirie 
or   Mevkufe  are  held  in  subjection  to  the  land,  as 
stated  in  the  chapter  on  possession  (16-i)  (Tesarruf). 

XOTE.  —  In  accordance  u-ifh  the  Forest  Law,  dated  11.  Shew?, 
1286,  Destur,  Vol.  II.,  p.  404,  all  the  Forests  are  divided  iniofuur 
classes  :  — 

1.  Government  Forests. 

2.  Forests  attached  to  Vakfs. 

3.  Baltalyks  assigned  to  Towns  and  Villages. 

4.  Woods  belonging  to  individuals. 

TJie  Government  Forests  are  administered  in  accordance  u'ith  the 
said  lav:,  the  regulations  concerning  the  administration  of  Erkaf 
Forests  are  also  g^ven  in  the  Karar  name,  Destur,  Vol.  IV.,  p.  417, 
and  the  regulations  dated  -•>.  Muharcm,  12'.(3,  with  regard  to  the 
'nation  of  titie-deeds  for  forests  claimed  l)y  individuals  are 
given  in  Destur,  Vol.  TIL,  p.  300. 

107.  Gold,  silver,  copper,  iron,  diverse  stones,  gyp-  Ownership 
sum.  sulphur,  saltpetre,  emery,  coal,  salt,  and  other  an(j  min! 
mines   appearing  on  Arazi   Mirie,  in  the  possession  erals* 


of  whomsoever  it  may  be,  belong  to  the  Beit  ul 

the  possessors  have   no   right  to   take  possession  of 


58  The  Ottoman  Land  Code. 

Ownership  any   mine    or    to    have    any  share  in  the    minerals 

of  metals  .  .  .  • 

and  miner-  got    out.      Likewise    all    mines    appearing    on    the 
als-  "  Takhsisat "  (165)  category  of  Arazi  Mevkufe  belong 

to  the  Beit  ul  Mai :  they  cannot  be  interfered  with 
by  the  owner  of  the  land  or  on  behalf  of  the  vakf. 
But  it  is  necessary  that  the  owner  should  be  given  the 
value  of  the  amount  of  land  which  it  is  necessary  to 
leave  idle  by  working  the  said  mines,  whether  they  be 
on  Arazi  Miri  or  on  the  aforementioned  Arazi 
Mevkufe.  One-fifth  of  the  mines  found  on  Arazi 
Metruke  and  Arazi  Mevat  belong  to  the  Beit  ul  Mai, 
and  the  remainder  belongs  to  the  person  who  finds 
them.  But  mines  appearing  on  real  vakf  land 
belong  to  the  vakf,  and  mines  appearing  on  Mulk  p 
Arsas  within  villages  and  towns  belong  entirely  to  the 
owner.  One-fifth  of  the  minerals  which  are  capable  of 
melting  found  on  Arazi  Ushri^  and  Kharajie  belong  to 
the  Beit  ul  Mai,  and  the  remainder  to  the  owner  of  the 
land  and  minerals  which  are  not  capable  of  melting 
belong  entirely  to  the  owner  (a)  (166).  The  procedure 
Treasure  with  regard  to  ancient  and  new  coins  and  diverse 
treasures  of  which  the  owner  has  no  knowledge  found 
on  all  land  is  explained  in  the  books  on  religious  law  , 
(kutb  fikhie)  (b)  (167). 

NoTE.(a) — Though  it  is  fixed  by  the  Law  on  Mines,  2.  Shaban, 
1285,  Destur,  Vol.  II.,  p.  318,  the  said  law  h"S  been  abrogated  by 
1he  subsequent  Law  on  Mines,  dated  18.  Zilhije,  1304,  which  has 
been  substituted  in  its  place,  and  which  is  published  in  No.  411  of 
the  Courts  Journal. 

(b)  Matters  relating  to  excavations  and  search  for  coins,  &c.,  of 


Land  Lau.  59 


this  .  1291, 

'/•,   IV.  7/7.,  y>.  -ilM,  /''/'  nnUi<'i'ity  oj 

•  •ed  l>y  the  l.n<r  on  Antiquities,  dak 

1*01,  p.  -  .  IV.  71". 


108.  The  land  of  a  person  murdered  cannot  pass  by  Forfeiture 
inheritance  to   his   murderer.     The  murderer  cannot  derer^ 
likewise  have  the  right  to  Tapu  (168)  in  the  land  of 

the  murdered. 

NOTE.— See  :Vo.  28. 

109.  The    land   of  a   Mussulman   cannot   pass   by  No  inheri- 
inheritance  to  his  children,  father  or  mother  non-Mus-  between 
sulrnan ;  the  land  of  a  non-Mussulman  cannot  pass  by  ^d 
inheritance  to  his  children,  father  or  mother  Mussul- 

iiian. 

man  ;  a  non-Mussulman  cannot  have  the  right  to  Tapu 
in  the  land  of  a  Mussulman,  and  a  Mussulman  cannot 
have  the  right  to  own  in  the  land  of  a  non-Mussulman 
(169). 

110.  The  land  of  an  Ottoman  subject  does  not  pass  Disability 
by  inheritance  to  his  children,  father  or  mother  who  subj' 
are  foreign  subjects,  and  a  foreign  subject  cannot  have  to  land 
the  right  to  Tapu  in  the  land  of  an  Ottoman  subject 
(170). 


111.  The  land  of  a  person  who  has  abandoned  the  Disabiiity 
Ottoman  nationality  does  not  pass  by  inheritance  abandon " 
to  his  children,  father  or  mother  who  are  Ottoman  or  the  Otto" 

man  na- 
tional it  v. 


60  The  Ottoman  Land  Code. 

foreign  subjects.  It  becomes  vacant  by  the  act,  and 
without  seeking  the  possessors  of  the  right  to  Tapu 
it  is  put  up  to  auction  and  given  to  the  candidate 
(171). 


.  —  The  authority  of  this  article  has  lieen  modified  ly  the 
law  ddited  end  of  Jemaziul  evel,  1284,  concerning  foreign  subjects 
becoming  possessors  of  property. 

Legal  112.     The  master  of  any  slave  who  shall  have  ac- 

of  quired  land  with  the  permission  of  his  master,  and 
through  the  official,  before  or  after  being  liberated, 
cannot  take  such  land  from  him  and  he  cannot  interfere 
with  it  in  any  way,  and  if  his  master  die  before  the 
slave's  liberation  .the  master's  heirs  likewise  cannot 
interfere  with  such  land.  If  a  clave  die  before  being 
liberated  nobody  shall  inherit  such  land,  and  if  there 
are  no  freehold  (Mulk)  buildings  or  trees  on  such 
land  nobody  but  his  partner,  relation,  or  an  inhabi- 
tant of  the  village  haying  need  of  it  shall  have  the 
right  to  Tapu  ;  if  there  are  on  it  freehold  (Mulk) 
buildings  and  trees  his  master  shall  have  preference 
over  others,  and  during  ten  years  he  shall  have 
power  to  take  it  "for  its  Tapu  value.  If  a  slave  die 
after  having  been  liberated  his  land  passes  by  in- 
heritance to  his  children,  father  or  mother,  who  are 
free.  If  there  are  none  of  these,  if  there  are  on  it 
no  freehold  (Mulk)  buildings  or  trees,  neither  the 
person  who  gave  him  freedom  nor  his  children  shall 
have  the  right  to  Tapu,  but  it  shall  be  given  for  t 


Land  Law.  61 


its  Tapu  value  to  the  possessors  of  the  right  to  Tapu 
being  his  own  relations  and  who  are  free,  if  any :  if 
lionr,  by  auction  to  the  candidate.  If  there  be  on  it 
free-hold  (Mulk)  buildings  and  trees,  it,  shall  be  given 
for  its  Tapu  value  to  the  possessor  of  the  right  to 
Tapu,  being  one  of  the  heirs  who  has  inherited  such 
freehold  (Mulk)  buildings  and  trees  (172).  (See  note 
to  Art.  54.) 

113.  The  alienation  of  Arazi  Mirie  and  Mevkufe  by  Alienation 
force   and  constraint  by  a  person   capable   of  being  Force," 
intimidated  is  not  valid.     If  a  person  has  alienated  to  &£*  y^. 
another  the  land  acquired  by  him  by  force  and  con-  able- 
straint,  or  if  he  has  fled  and  it  has  passed  by  inherit- 
ance to  his  children,  father,  or  mother,  or  if  there  are 

none  of  these  and  by  his  death  it  has  become  vacant 
(Mahlul),  the  alienor  (by  force  and  constraint),  and 
after  his  death  his  children,  father,  or  mother  have 
power  to  take  action  on  account  of  force.  If  he  die 
without  an  heir  having  the  right  of  inheritance  (Hak 
Intikal)  the  land  is  not  considered  vacant  (Mahlul), 
and  it  remains  in  the  hands  of  the  person  wrho  holds  it 
(173).  (See  note  to  Art.  54.) 

114.  The  alienation  and  transfer  of  Arazi  Mirie  cr  Alienation 
Mevkufe  with  conditions  considered  illegal  by  the  Sheri  Condition?1 
(religious  law),  such  as  seeing,  taking  care,  and  causing  voidable- 

a  person  to  live  comfortably  until  hig  death,  is  not 
valid ;  if  a  person  has  alienated  to  anc  .iier  the  land 


62  The  Ottoman  Land  Code,  <• 

acquired  on  these  illegal  conditions,  or  if  tie  has  died 
and  it  has  passed  by  inheritance  to  his  children,  father, 
or  mother,  the  first  alienor,  or  if  he  is  dead,  his  heirs 
having  the  right  of  inheritance  have  power  to  bring  an 
action  on  account  of  illegal  conditions  (174). 

This  Article  has  been  replaced  by  one  dated  18.  Safer,  1306. 

Land  can-  115.  The  creditor  cannot  seize  the  land  owned  by  a 
seized6  for  debtor  in  exchange  for  his  debt,  and  he  has  not  the 
power  to  force  him  to  alienate  it  to  another  and  to  pay 
the  debt  out  of  its  value ;  and  on  the  death  of  the 
debtor,  whether  he  has  other  property  and  goods  or 
not,  the  land  possessed  by  him  passes  by  inheritance 
to  his  heirs,  if  any,  having  the  right  of  inheritance  :  if 
none  it  becomes  the  right  of  Tapu  and  is  granted  for 
its  Tapu  value  to  the  possessor  of  the  right  to  Tapu, 
if  any  :  if  none  by  auction  to  the  candidate  (175). 

NOTE. —  The  provisions  of  this  article  contrary  to  the  law  dated 
27.  Simian,  1286,  concerning  the  sale  of  immovable  property,  are 
abolished. 

AraziMh-ie      116.  Arazi  Mine  and  Mevkufe  cannot  be  mortgaged 
kuf/not~to  (Renn)-     But  if  a*  Person  alienates  the  land  owned  by 
be  mort-     nim?  in  opposition  to  this  debt,  to  his  creditor,  through 
the  official,  on  condition  that  whenever  he  pays  his 
debt  it  shall  be  returned  to  him,  or  by  Feragh  bil  vefa, 
Conditional  meaning   that  whenever  he   pays  his  debt   he   shall 
have  the  right  tc  claim  restitution,  whether  the  time 
has  been  fixed  or  not:  without   paying  his  debt,  he 


Land  Law.  63 


cannot  claim  the  restitution  of  such  land,  and  when 
he  has  entirely  paid  his  debt  he  can  take  back  his 
If&cl  (176). 

B.  —  7'Jie  i  '''I/'"!/  °ut  3Iortr/rif/e  (Feragh  Inl  vffa) 

this  llGtfi  Article  is  given  in  Art.  26  of  the  Ta^u  I 


117.  If  a  person  who  has  alienated  the  land  owned  i/; 
by  him  to  another  in  opposition  to  his  debt,  with  the  p'u 
foregoing  condition  or  by  way  of  Feragh  bil  vefa,  and 
up  to  such  a  time  cannot  pay  the  debt,  if  he  makes 
his  creditor  his  Yekil  by  Yekialet  Devrie  (177),  that  is 

to  say,  at  whatever  time  he  dismisses  him  from  being 
Vekil  he  is  to  be  his  Yekil  again  to  alienate  or  cause 
to  be  alienated  such  land  to  another  for  its  equiva- 
lent value  (Bedel  Misl),  and  after  deducting  his  debt 
from  the  value  to  deliver  the  balance  to  the  debtor, 
and  if  by  the  expiration  >  of  the  time  fixed  the  debtor 
has  not  been  able  to  pay  the  debt,  the  creditor  can 
during  the  debtor's  lifetime  alienate  or  cause  such 
land  to  be  alienated  through  the  official  for  its 
equivalent  value  (Bedel  Misl)  and  pay  his  debt  ;  and 
if,  as  aforesaid,  he  makes  some  one  else  from  out- 
,  side  as  his  Yekil,  such  person  also,  at  the  expiration  of 
the  time  fixed,  as  Yekil  as  aforementioned,  shall  sell 
such  land  to  another  and  pay  the  debt  of  the  debtor 
from  its  value  (178). 

118.  If  a  debtor  who  has  alienated  M*  land  to  his 
^  creditor,  on  the  condition  previously  stated  or  under 


64  The  Ottoman  Land  Code. 

Land          the  form  of  vefa,  die  before  entirely  paying  his  debt, 
wrthgdebt   leaving  children,  father,  or  mother,  the  creditor,  or  if 

•  V.o-pfl,,         f)f     -, 

land,  and  the  children,  father  and  mother  of  the  debtor 
without  entirely  paying  the  debt  cannot  take  posses- 
sion of  the  land  which  has  passed  to  them  by  inheri- 
tance. If  the  debtor  die  without  heirs  having  the 
right  to  inheritance  his  creditor,  or  after  his  death  his 
heirs,  have  no  right  of  attachment,  and  the  land 
follows  the  procedure  of  other  vacant  land  (179) 
(Mahlulat). 

NOTE. — The  provisions  of  this  article  opposed  to  the  law  dated 
23  Ramazan,  1286,  concerning  the  conditions  fixing  Arazi  Mirie 
and  Mevkufe  and  Musakafat  and  Musteghillat  Vakfie,  satisfying     * 
debt  after  the  death  of  the  debtor,  are  abolished. 

Action  as  119.  Actions  for  fraud  between  alienors  and  alienees 
cannot  be  in  a^  Arazi  Mirie'  and  Mevkufe  will  be  heard,  but 
continued  after  tke  (jecease  oft  the  alienor  his  children,  father 

by  heirs. 

or  mother  have  no  right  to  action,  and  the  land 
cannot  be  considered  Mahlul  (180). 


NOTE. — It  is  one  of  the  provisions  of  the  Vezirial  letters,  dated 
25.  Ramazan,  1292,  and  20.  Ramazan,  1296,  that  disputes  of  this 
nature  will  be  heard  in  the  Nizam  Courts. 


Validity  of  120.  The  s.ilienation  of  land  Mirie  and  Mevkufe 
made  in  a  state  of  mortal  illness  is  valid,  and  the 
land  t]lus  aiit  ated  with  the  permission  of  the  official 


\ 


Land  Lai^.  65 


does  not  pass  by  inheritance  to  the  heirs  having  the  / 
right   of  inheritance,  nor,  if  th< 
b*  come  the  right  of  Tapu  (181). 


right  of  inheritance,  nor,  if  there  are  none,  does  it  "* 


121.  A  person  cannot  make  the  land  he  possesses  Tenant 
Vakf  to  any  object  (182)  without  its  being  put  into  his  make'  Vakf 
actual  possession  by  an  Imperial  Mulkname  from  the 
Sultan. 


122.  Land  attached  db  antique  to  a  monastery  and 

of  which  the  attachment  is  registered  in  the  Imperial  land  held 
Defter  Khane  cannot  be  possessed   by  Tapu  and  it  j£ergelisious 
cannot  be  bought  or  sold  ;  but  concerning  land  which 
has  ab  antiquo  been   held  by  Tapu,   and  which   has 
subsequently  by  some  means  passed  into  the  hands 
of  a  monk,   and  which   is    being  possessed  without 
Tapu  as  being   attached   to  a    monastery,  the   same 
procedure   as   with   regard   to   other   Arazi   Mirie   is 
followed,  and  as  before  it  is  caused  to  be  held  by 
Tapu  (183). 

123.  When   land  capable  of  cultivation   comes  to  Reclaimed 
light  by  the  waters  of  an  ab  antiquo  lake  or  river  S<,M  bv 
receding,  it  is  put  up  to  auction  and  given   to   the  auction- 
candidate,  and  it  follows  the  same  procedure  as  other 

Arazi  Mirie  (184). 

124.  In  disputes  about  the  right  of  drinking  and  Preserva- 
irrigating  water  and  water  channels,  consideration  is  ^eot 
paid  only  to  the  ab  antiquo  rights  (185).  rights. 

F 


66  The  Ottoman  Land  Code. 

Protection       125.  It  is  not  lawful  to  allow  animals  to  graze  in 

vineylfrfB  fields  called  K^uk  Terke>  vineyards,  and  gardens.  If 
gardens,  they  have  been  allowed  to  graze  ab  antiquo  the  damage 
cannot  be  eternal.  The  owners  will  be  warned  to  keep 
a  firm  control  over  their  animals  until  the  crop  is 
removed.  If,  after  warning,  the  animals  do  damage 
by  being  sent  by  their  owners,  the  latter  will  be  made 
to  pay  compensation.  After  the  crop  has  been 
removed,  the  animals  will  be  allowed  to  graze  again 
in  such  parts  of  such  lands  as  they  have  been  allowed 
to  graze  in  of  ol.d. 

NOTE. — As  the  inhabitants  have  the  right  to  pasture  their  animals 
after  the  first  crop  has  been  removed  from  the  land,  a  letter  has 
been  sent  from  the  Ministry  of  Justice,  dated  12.  Eebi  ul  Akhir, 
1305,  stating  that  in  the  event  of  an  application  to  the  Courts  to 
s'op  them  they  should  not  be  prevented  from  pasturing  in  accordance 
with  this  article. 

Restoration  126.  If  the  distinguishing  and  fixed  ancient 
boundaries,  boundaries  of  a  town  or  village  have  been  spoilt  or 
are  not  recognisable  they  shall  be  gone  over  with 
persons  aged  and  trustworthy  from  among  the  inhabi- 
tants of  the  neighbouring  towns  and  villages,  and  the 
ancient  boundaries  shall  be  defined  through  the  Sheri 
and  the  necessary  marks  renewed  (188). 

NOTE. — In  accordance  with  the  Imperial  Irade  notified  by 
Vezirial  letter,  dated  20.  Eamazan,  1296,  boundary  disputes  will  be 
heard  in  the  Nizam  Courts. 

Tithes,  127.  The  tithe  of  all  crops  shall  only  be  considered 

axes,  &c.    ag  ^ue  k    ^e  yjiiae  within  the  boundaries  of  which 


\ 


Land  Law.  67 

tho  land  on  which  they  are  grown  is  situate,  no  matter 
where  they  may  be  threshed  (189).  Likewise  the  fixed 
i^nts  and  taxes  of  yaylaks,  kishlaks,  otlaks  (190), 
enclosures,  mills,  &c.,  shall  only  be  considered  as  due 
by  the  village  within  whose  boundaries  they  are  situate. 

NOTE. — The  provisions  of  this  127th  Article  have  been  confirmed 
by  Art.  4  of  the  Tithes  Law,  dated  16.  Shaban,  1304,  contained  in 
Nos.  396-398  of  the  Courts  Journal,  the  tithe  to  be  taken  in  kind 
nr  nmucy  »n  all  crops  on  the  land,  the  mode  of  farming  the  tithes, 
and  the  duties  of  officials  appointed  have  also  been  fixed. 

128.  If  in  places  registered  in  the  Imperial  Defter  Works  for 
Khane  as  rice  fields  the  stream  supplying  these  rice  to^pre- 
fields  with  water  gets  destroyed,  the  persons  sowing  serred- 

|  the  fields  shall  be  made  to  repair  the  stream.  The 
land  of  rice  fields  is  held  by  Tapu  like  other  Arazi 
Mirie.  But  whatever  the  local  procedure  in  force  db 
aniiquo  with  regard  to  rice  fields  may  be,  it  shall  be 
respected. 

129.  Land  which  was  before  the  Tanzimat  assigned  Extension 
to  Sipahis  and  others  called  khassa  (191),  and  that 
reserved  to  the  abolished  system  of  Vinghana  (193), 

,  called  Bashtina  (192),  and  that  given  by  Tapu  by  the 
abolished  Koru  Agas,  shall  be  possessed  by  Tapu,  and 
in  case  of  alienation,  inheritance  and  transfer,  it  shall 
follow  exactly  the  same  procedure  as  other  Arazi  Mirie. 

NOTE. — The  mode  of  examining  the  Title-Deeds  held  by  owners 
claiming  the  possession  of  Woods,  is  given  in  the  Eegulations  Destar, 
*      Vol.  111.,  p.  300. 

F   2 


68  The  Ottoman  Land  Code.  ff 

uhiftiik,—  130.  The  land  of  an  inhabited  village  cannot  be 
Seated!  *  given  to  one  person  independently  in  order  to  make  a 
Chiftlik  (194) ;  but,  as  stated  in  Art.  72  (195),  if  all  tlie 
inhabitants  of  a  village  are  scattered,  and  the  Tapu 
has  acquired  the  right  to  its  lands,  if  it  is  not  possible 
to  bring  back  that  village  to  its  original  state  by  bring- 
ing fresh  agriculturists  to  live  there,  and  conferring  on 
them  the  land  separately,  the  land  can  be  given  in  lots 
to  one,  two  or  three  persons  in  order  to  make  that 
village  into  a  Chiftlik. 

Definition  131.  By  law  Chiftlik  means  a  place  which  is  culti- 
of  chifthk.  va£ec[  by  means  of  a  pair  of  bullocks  and  gives  pro- 
duce every  year,  and  consists  of  about  70  to  80 
donums  of  superior,  100  donums  of  middling,  and  130 
donums  (196)  of  inferior  land.  A  donum  is  a  place  of 
40  square  paces  of  medium  length,  that  is  1600  ziras 
square,  and  lands  of  less  than  one  donum  are  called 
kita  (piece).  But  arqong  the  people  the  place  called 
Chiftlik  consists  of  the  land  and  buildings,  animals, 
seed,  farm  implements  and  other  appurtenances,  built 
and  got  together  in  the  cultivation  of  a  lot  of  land. 
If  a  possessor  of  a  Chiftlik  of  this  category  dies 
Devolution  without  any  heir  or  persons  possessing  the  right  to 
"  Tapu,  it  is  put  up  to  auction  by  the  Government, 
and  given  to  the  candidate.  If  he  dies  without  an 
heir  having  the  right  of  inheritance  (Hak  Intikal), 
and  the  said  buildings,  animals,  seed,  &c.,  pass  by 
inheritance  to  the  other  heirs,  as  is  stated  in  the 


\ 


Land  Law.  69 


on  Mahlulat  (107),  these  heirs  shall  have  the 
right  of  Tapu  to  the  lands  possessed  and  cultivated 
in  subjection  to  that  Chiftlik,  and  the  said  land  shall 
be  conferred  on  them  for  its  Tapu  value.  If  they 
abstain,  without  touching  the  property  (Emlak)  and 
goods  inherited  by  them,  only  the  said  land  shall  be 
conferred  by  auction  on  the  candidate  (198). 

XUTE. — In  accordance  with  Art.  3  of  the  Law  dated  7.  Muharem, 
12! '3,  Mussulman  and  non-Mussulman  subjects  who  are  cultivators 
in  Chiftlik*,  have  preferential  rights  at  the  time  when  lands  sold  hy 
auction  or  alienated  by  private  individuals  are  ~bein<j  received. 

132.  Whoever  by  permission  of  the  Sultan  converts  Land  re- 
i  into  property  (Emlak)  a  portion  of  the  sea,  he  becomes 
owner  of  that  place.  If  he  gets  permission  and  does  sea- 
not  fulfil  it  in  three  years  he  has  no  further  right, 
and  by  permission  of  the  Sultan  another  can  make 
that  place  into  his  property.  If  a  person  without 
permission  fills  in  a  portion  of  the  sea,  such  place 
belongs  to  the  Beit  ul  Mai  and  shall  be  sold  to  such 
person  for  its  equivalent  value  (Bedel  Misl)  ;  if  he 
abstains,  it  shall  be  sold  by  auction  to  the  candidate 
,  (199). 

CONCLUSION. — This  Imperial  law  shall  be  in  force 
from  the  date  of  its  promulgation,  and  the  provisions 
contrary  to  its  contents  of  supreme  orders  issued 
anciently  or  recently  up  to  now  concerning  Arazi 
Mirie  and  the  Takhsisat  category  of  Arazi  Mevkufe 


jo  The  Ottoman  Land  Code.  <•< 

Operation  (200)  shall  be  annulled,  and  the  Fetvas  which  have 
been  given  by  the  Shiekhs-ul-Islam  (201)  based  on  the 
said  orders  shall  not  be  acted  upon,  and  hereafter  only 
this  Imperial  Law  shall  be  in  force  in  the  Sheikh-ul- 
Islamate,  Government  Offices,  and  in  all  the  Courts 
and  Councils.  And  the  old  laws  concerning  Arazi  Mirie 
and  Mevkufe  in  the  office  of  the  Divan  Hurnayun 
(202),  in  the  Imperial  Defter  Khane,  and  in  other 
places  (203),  shall  not  be  respected. 

7.  Eamazan,  1274. 


APPENDIX  APPROVED  BY  IMPERIAL  IRADE. 

Actions  by  others  claiming  the  possession  of  Arazi  Khalie 
Mahlule  which  the  Government  has  conferred  on  immigrants,  and 
which  has  been  cultivated  or  on  which  buildings  have  been  made  by 
the  latter,  will  not  be  heard  after  two  years  have  passed  without 
excuse. 

1    4.  Jemazi  ul  evel,  1305. 
12.  January,  1303. 
Courts  Journal,  No.  429. 


\ 


II.    TAPU    LAW   (1)  (2). 
COPY  OF  IMPERIAL  KHAT. 


"LET   BE    DONE    ACCORDINGLY." 


1.  The  Mai  Memours,  that  is  to  say,  the  Defterdars,  Authority 
Malmudirs,   and   Kaza  Mudirs,   being   authorised  to  Memours. 
confer  Arazi  Mine  in  the  provinces,  they  are  in  the 
position  of  the  owner  of  the  land  (3). 

NOTE. — See  Note  (b),  Art,  3  Land  Law. 

2.  The  Mudirs  of  Agriculture  have  no  special  con-  Limit  on 
cern  in  matters  of  alienation,  inheritance,  and  transfer  M^^ 
of  the  said  land,  and  they  will  only  have  the  same 
authority  as  other  members  in  their  quality  of  members 

of  the  Council  (4). 

3.  When  a  person  desires  to  alienate  his  land  to  Formal  it  it 
another,  he  must  get  a  certificate  bearing  the  seals  tion. 

of  the  Imam  and  Mukhtar  of  his  quarter  or  village, 
stating  that  he  is  really  the  owner  of  such  land,  the 
true  amount  of  how  many  piastres  he  is  going  to  alie- 
nate it  for,  the  Kaza  and  village  in  which  it  is  situate, 


The  Ottoman  Land  Code. 


its  boundaries,  and  the  number  of  donums.     When  the 
alienor  and  alienee,  or  their  legal  agents,  come  to  the 
Mejlis  of  the  Country,  the  certificate  brought  by  them 
will   be   taken   and   kept,   and  after  the  fees  of  the 
Mode  of      alienation    have   been   paid,  their  statements  will  be 
anrley"       taken  in  the  presence  of  the  Mudir  of  the  Country  if 
it  is  at   the  head-quarters  of  a  Kaza,  and  the  Mai 
Meniours  if  it  is  at  the  head-quarters  of  a  Liva  or 
Vilayet ;    and  the  process  of  its  registration  will  be 
carried  out,  and  the  title-deed  in  hand  will  be  taken, 
if  at  the  head- quarters  of  a  Kaza.  and  sent  with  a 
Mazbata  and  the  said  fees  to  the  head-quarters  of  the 
Liva,    to   which  it  is   attached,  in  order  to  have  an 
annotation  written  in  the  margin,  or,  if  it  is  an  old 
one,  for  it  to  be  changed  and  the  old  one  kept.     There 
Registra-    the  Mazbata  of  the  Kaza  will  be  kept  and  the  registra- 
tion carried  out,  and  in  accordance  therewith  another 
Mazbata   will    be   prepared   and   sent   to   the  Defter 
Khane.     If  it  is  at  the  head-quarters  of  the  Liva,  the 
Mazbata  will   be  at  once  prepared   and  sent  to  the 
Defter  Khane.     If  the  alienor  has  no  old  title-deed, 
the  nature  of  his  possession  should  be  stated  in  the 
Mazbatas  prepared' as  above. 

NOTE. — The  authority  of  the  sentences  in  this  and  the  following 
article,  which  are  contrary  to  Arts.  2  &  3  of  the  instructions  dated 
7.  SJiaban,  1276,  concerning  Tapu  Seneds,  ore  abolished. 

4.  When  a  person  is  about  to  alienate  his  land  in 
the  country  to  a  person  living  at  Constantinople,  a 


\ 


Tapu  Law.  73 


Ma/buta  stating  that  he  is  actually  the  owner  must  M< -: 

be  brought   from  the  Mejlis  of  the  Sanj;ik  in   which  whenY>ur- 


upon  suc- 
cession. 


th?  land  is  situate,  and  the  alienor  and  alienee  or  their 

1 1  agents  will  attend  at  the  Defter  Khane  (5),  and  tinopie. 
after  their  statements  have  been  taken  as  stated  in  the 
preceding  article,  if  the  alienor  has  a  new  Tapu  Sened 
a  marginal  note  will  be  written,  if  not,  a  new  one  will 
be  given.  On  the  delivery  of  every  title-deed  a 
certificate  will  be  sent  from  the  Defter  Khane  to  the 
locality  in  order  that  the  registration  may  be  made 
there.  (See  note  to  Art.  3.) 

5.  In  the  event  of  inheritance,  the  fees  that  will  be  Formalities 
taken  from  the  person  having  the  right  of  inheritance 
in  accordance  with  the  sealed  certificate  given  by  the 
Imam  and  Mukhtar  of  his  village  or  quarter  stating 
that  the  land  of  the  deceased  which  is  about  to  be 
inherited  was  really  his  property,  its  estimated  value, 
and  that  in  accordance  with  Arts.  -54  &  55  of  the  Land 
Law  (6)  (a),  the  right  of  inheritance  only  belongs  to 
the  person  to  whom  it  is  about  to  be  carried  out, 
together  with  the  Mazbata,  will  be  sent  to  the  Defter 
•Khane,  as  stated  in  Art.  3,  and  the  inheritance  will  be 
carried  out  (b). 

X<>TE.(*) — The  sentence,  "In  accordance  v:ith  Arts.  54  &  55  of 
the  Land  i«'/f,"  in  this  article  has  been  changed  by  the  laiv  dated 
17.  M '(harem,  1^84,  concerning  the  mode  of  inheritance  of  Aiazi 
Mirie. 

(b)  In  accordance  with  the  Instructions  (Xo.  4),  the  system  of 


74  The  ^Ottoman  Land  Code. 

inheritance  is  carried  out  locally,  and  printed  Kochans  are  yiven  to 
.  the  owners. 

^ 

Duty  pay-       6.  At   however    many    piastres   the    land  may   be 

sakcr™11    alienated,  "a  fee  of  five  piastres  per  hundred  is  taken 

mortgage.   from  ^he   alienee.     But   if  a  person  understates   the 

price  of  the  land  in  order  to  pay  less  fees  on  alienation, 

the  value  shall  be  ascertained  by  a  person  free  from 

bias  and  corruption,  and  the  said  fee  shall  be  taken  on 

its  estimated  value.     Half  fees  shall  be  taken  from  the 

person  who  mortgages  (Vefaen  Feragh)  (7)  his  land 

for  debt,  that  is  to  say  a  fee  of  two  and  a  half  piastres 

per  hundred  on  the  amount  of  the  debt. 

NOTE.— See  No.  29. 

Duty  pay-       7.  In  an  exchange  of  land  (8)  the  estimated  total 

exchange!    value  of  both  lands  shall  be,  divided  and  a  fee  of  five 

piastres  per  hundred  shall  be  taken,  but  the  one- half 

of  this  fee  shall  be  paid  by  the  one  and  the  other  half 

by  the  other  exchanger  of  the  land. 

Duty  pay-       8.  In  inheritance  the  person  who  is  about  to  inherit 
succession,   the  land  shall' likewise  pay  an  inheritance  fee  of  five, 

piastres  per  hundred  on  the  estimated  value  of  the 

land. 


Fee  pay-         £.  Besides  the  alienation  and  inheritance  fees  that 

tide-deed.    snaU  he  taken  in  accordance  with  the  above,  when  a 

new  title-deed  is  issued  three  piastres'  cost  of  paper 


\ 


Tapu  Law.  75 


shall  also  be  taken  in  alienation  from  the  alienor,  and 

in  inheritance  from  the  inheritor. 

• 

NOTE. — In  accordance  with  the  new  system,  cost  of  paper  is  not 
taken  from  the  alienor. 

10.  When  a  person  is  about  to  alienate  to  another  the  Duty  pay- 
land  of  which  the  inheritance  has  not  yet  been  legally  Vendor  has 
carried  out  to  him,  five  piastres  per  hundred  shall  be  ln 
taken  from  each  of  them,  as  inheritance  fee  from  the 
alienor  and  as  alienation  fee  from  the  alienee,  and  in 

case  a  new  title-deed  has  been  issued  three  piastres 
cost  of  paper  shall  also  be  taken  from  the  alienor  (9). 

11.  On  a  certificate  from  the  village  or  quarter,  and  New  titie- 
the  necessary  inquiries,  that  new  title-deeds  should  be 
issued,  a  Mazbata  will  be  drawn  up,  and  sent,  together 

with  the  certificate,  to  the"  Defter  Kh,ane,  on  payment 
of  the  following  fees  : — 

i.  Inheritance  and  cost  of  paper,  by  persons  who 
hold  land,  other  than  vacant  or  concealed  (10), 
without  title. 

ii.  Cost  of  paper,  by  persons  who  have  old  titles 
issued  by  Sipahis,  Multezims,  &c.  (11),  and  by 
persons  who  prove,  by  the  registers,  that  they  have 
lost  their  title-deed  (12). 

NOTE. — For  the    examination  of  Title-Deeds  issued  regarding 
Woods  see  the  Regulations,  Destur,  Vol.  III.,  p.  300.     The  matter 
*     of  renewal  of  Title-Deeds  is  fixed  in  Art.  1  of  the  Tapu  Regulations 
(No.  3). 


76  The  Ottoman  Land  Code. 

t  • 

Title-deeds      12.  As  stated  in  Art.  103  of  the  Land  Law,  waste 

Und*8 '      lands  (Boz  and  Kiraj)  shall  be  given  and  new  titles 

issued  gratis  and  without  fee  to  persons  who  newly 

open  them  up  and  make  them  into  arable  land ;  only 

three  piastres'  cost  of  paper  shall  be  taken.     Tithes 

Immunity   shall  not  be  taken  for  one  year  on  this  category  of 

lands  from  land  (Boz  and  Kiraj),  and  for  two  years  if  the  land 

tlthe'         opened  by  them  is  stony  (Tashlik)  (13). 

Waste-  13.  Arazi  Mevat  is  given  in  the  foregoing  manner 

to'beap-    to  persons  who  desire  it  for  agriculture  and  improve* 
propriated  ment   onur>     jt   js   fa&   duty   of  yajis    Kaimakams, 

except  J  J 

under         Kaza  Mudirs,  and  Mai  Memours,  not  to  allow  persons 

special  .    .  . 

conditions,  to  take  it  with  other  supposition,  and  especially  not  « 
to  allow  title-deeds  to  be  given  and  possession  granted 
to  persons  for  places  which  have  been  left  and  as- 
signed to  the  public  benefit,  and  Jibal  Mubah  (moun- 
tains) (14),  and  to  cause  the  land  which  becomes  the 
right  of  Tapu  by  non-cultivation,  to  be  cultivated. 

NOTE. — See  Note  (b),  Art.  3,  Land  Law. 

Contents         14.  In  the  printed  Tapu  Seneds  with  the  Tughra  at 
Tapuin       top  given  to  the  owners  of  land  stating  the  nature  of  * 
Seneds.       their  holding,   the  Kaza   and    village  in    which  the 
land   is   situate,   and  its  boundaries   and  number  of 
donums  shall  be  stated,  and  it  shall  be  sealed  with  the 
special  seal  of  the  office  entrusted  with  the  register. 

f 
15.  The  conditions    contained    in  the  Mulknames 


Tapu  Law.  77 


will   bo   carried   out   conn-ruing   Chiftliks  which    arc  (<<".<iitions 
being  held  by  Imperial  Mulkname  (!.">).  i.ii.-.i  to 

,  Chiftliks. 

16.  If  the  possessors  of  the  right  to  Tapu  are  not  Disposal  of 
forthcoming  the  land  which  is  the  right  of  Tapu  shall  f^nd,  sub- 
be  offered  in  turn  to  the  possessors  of  the  right  to  v^J0 
Tapu,  as  stated  in  Art.  59  of  the  Land  Law,  for  the 
value  assessed  locally,  that  is  to  say,  by  ascertaining 
from  the  inhabitants  of  the  town  or  village  in  which 
the  land  is  situate,  who  are  disinterested  possessors  of 
knowledge,  and  if  it  does  not  cause  loss  and  injury  to 
the  Treasuiy.  If  they  are  candidates  it  shall  be 
conferred  upon  them  without  being  put  up  to  auction, 
and  the  necessary  Mazbata  drawn  up.  If  the  land  in 
question  is  less  than  one  hundred  donums,  the  inquiries 
of  the  Kaza  Mejlis  (16)  shall  be  sufficient,  but  if  it  is 
more  than  one  hundred  dpnums,  the  inquiries  of  the 
Kaza  Mejlis  shall  not  be  sufficient,  and  after  the 
necessary  inquiries  have  also  been  carried  out  by  the 
Liva  Mejlis  (17)  the  transfer  shall  be  carried  out  also 
without  auction.  Care  must  be  taken  that  the  Tapu 
of  this  land  is  not  delayed,  and  that  the  rights  of  the 
,  possessors  of  the  right  to  Tapu  are  not  lost  on  account 
of  these  inquiries  (18). 

NOTE.  —  The  authority  of  this  article,  contrary  to  the  law  dated 
17.  Muha>em,  1284,  concerning  the  mode  of  inheritance  of  Arazi 
j\lirie  is  abolished. 


17.  If  the  possessors  of  the  right  to  Tapu  lose  their 


78  The  Ottoman  Land  Code.          fi 

Declaration  right  by  refusing  to  take  for  its  Tapu  value  the  land 
ment  to  which  they  have  a  right  to  Tapu,  the  circumstance 
of  their  refusal  will  be  stated  in  the  Mazbata  that  will 
be  drawn  up  in  order  that  the  land  may  be  given  to 
the  candidate  at  auction  as  follows.  (See  note  to 
Art.  16.) 

Disposal  18.  Land  which  has  become  pure  Mahlul  (19),  and 
Ma*hiu] 1  which  in  accordance  with  Art.  77  of  the  Land  Law,  it 
it  is  necessary  should  be  conferred  by  auction  on 
another  on  account  of  there  being  no  possessors  of  the 
right  to  Tapu,  or  if  there  are  any,  and  they  abstain 
from  taking  the  land  to  which  they  have  the  right  to 
Tapu  and  lose  their  right,  will  be  conferred  on  the  ^ 
candidate  for  the  price  settled  by  auction  by  the  Kaza 
Mejlis,  if  up  to  one  hundred  donums,  and  its  auction 
again  by  the  Liva  Mejlis,  if  from  one  hundred  to  five 
hundred  donums,  and  the  necessary  Mazbata  will  be 
prepared.  If  it  is  more  than  five  hundred  donums 
after  the  auctions  at  the  Kaza  and  Liva  Mejlises  have 
been  carried  out,  the  matter  should  be  communicated 
to  the  Ministry  of  Finance,  in  order  that  another 
auction  should  '  be  held  at  the  Imperial  Treasury  of  t 
Finance  also.  The  auctions  of  this  category  of 
Mahlulat  shall  be  completed  at  most  within  three 
months  from  the  date  of  the  arrival  of  the  Mazbatas 
at  Constantinople.  The  possessors  of  the  right  to 
Tapu  have  been  stated  at  length  in  the  Land  Law, 
but  the  Tapu  rights  of  inhabitants  who  have  need  of  ' 


Tapn  Law.  79 


land,  and  who  are  comprised  in  the  last  degree  of 
riirhts  to  Tapu  being  confined  to  the  amount  of 
separated  land  to  which  they  have  neqd,  in  matters 
of  large  parcels  of  land  which  it  would  be  injurious  to 
separate  and  divide,  and  Chiftlik  lands,  the  right  to 
Tapu  is  valid  only  up  to  the  eighth  degree  stated  in 
Art.  59  of  the  said  Law.  (See  note  to  Art.  16.) 

NOTE. — Superseded  ly  fresh  article,  approved  ly  Imperial  Trade, 
dated  27.  Sheval,  1303. 

19.  The  Muajelat  of  Arazi  Mahlul,  and  the  aliena-  Application 
tion   and   inheritance  fees  to   be  taken  as  described  i°aVand^of 
before,  and  the  cost  of  paper,  shall  all  belong  to  the  fees- 
Imperial  Treasury. 

20.  Whoever   other  than   the  land   officials   gives  Reward  to 
notice   of  concealed   Arazj.   Mirie   and  Mevkufe,  the  as  to  con. 
Mahlulsi  which  has  not  been  directly  heard  of 

by  the  Government,  will  be  given  a  reward  of  ten 
piastres  per  hundred  on  the  Bedel  Muajel  after  it  has 
been  sold  by  auction  by  the  Mejlis. 

NOTE.— See  No.  30. 

21.  On  the  alienation,  inheritance,  and  conference  of  Title-deeds 
land  as  above,  after  the  fees  of  alienation  or  inheritance,          ** 
or  the  Muajel  have  been  paid  no  time  should  be  lost 

in  getting  or  delivering  the  title-deeds.  In  order  that 
the  new  owner  may  at  once  possess  and  cultivate  the 
land,  a  certificate  sealed  with  the  seal  of  the  Mejlis 


8o 


The  Ottoman  Land  Code. 


Certificate  shall  be  given  to  him  to  be  considered  as  valid  until 
making  of  the  arrival  of  the  title-deed. 


title-deed. 


NOTE. — In  Accordance  with  the  instructions  dated  7.  Shabant 
1276,  concerning  Tapu  Seneds,  the  authority  of  the  sentence,  "a 
certificate  sealed  with  the  seal  of  the  Mejlis  shall  be  given"  is  no 
longer  in  force. 


Registra- 
tion. 


22.  A  separate  land  register  for  each  Kaza  shall 
be  kept  at  the  head-quarters  of  the  Liva,  and  in  the 
event  of  alienation,  inheritance,  or  conference,  the 
process  of  registration  shall  be  carried  out. 


Transmis-  23.  The  Mazbatas  drawn  up  for  the  title-deeds  of 
Mazbatas.  ^anc^  w^  ^e  Pllt  *n  a  seParate  envelope  and  sent  by  ^ 
the  post  direct  to  the  Defter  Khane.  But  it  shall 
also  be  permissible  for  the  person  to  whom  the  land  is 
going  to  be  passed  to  take,  the  Mazbata  himself  and 
present  it  to  the  Defter  Khane. 

Hearing  of      24.  Actions  for  fraud  in  Arazi  Mirie  being  current, 

SuT  f°r  actions  of  this  kind  which  are  tried  by  the  Sheri  shall 

be   heard   in  the  presence  of  the   Mai   Memours  or 

their  agents  who  are  considered  as  the  owners  of  the , 

soil. 

NOTE. — In  accordance  with  Imperial  Jiade  communicated  by 
letter  from  the  Ministry  of  Justice,  dated  20.  tiamazan,  12U(j, 
actions  with  rejard  to  land  and  boundaries  will  be  heard  in  the 
Kizam  Courts.  And  in  accordance  with  Vezirial  letter,  dated  20. 
Zilriii'e,  1290,  the  D<ft>r  Khane  and  Tapu  officials  will  be  present  ,, 
during  trial  as  owners  of  the  soil. 


CHAPTER  L 

CONCERNING   THE    MORTGAGE    (VEFAEN    FERAGH)    BY 
THE    OWNER   OF   ARAZI   MIRIE  IN  OPPOSITION    TO   DEBT. 

25.  As  stated  in  the  Imperial  Land  Law,  the  Legal 
mortgage  (Vefaen  Feragh)  of  Arazi  Mine  by  the  owner  Mortgagee 
in  order  to  secure  debt  is  lawful  and  current,  but  if 
the  mortgagor  dies  without  heirs  having  the  right  to 
inheritance,  the  creditor  cannot  seize  such  land  in 
opposition  to  his  claim,  and  though  by  law  it  is  neces- 
sary that  such  land  should  become  the  right  of  Tapu 
as,  solely  fb:  che  public  benefit,  Imperial  permission 
was  given  or  the  9.  Ramazan,  1274,  that  the  creditor 
may  recover  his  debt  from  the  value  of  such  land,  the 
conditions  which  it  is  necessary  should  be  followed 
for  the  mortgage  (Vefaen  Feragh)  of  land  are  stated 
below. 

NOTE. — The  authority  of  this  article,  contrary  to  the  law  dated 
23.  Ramazan,  1286,  concerning  conditions  appointing  Arazi  Mirie 
and  Mevkufe  and  Musakafat  and  Musteghillat  Vakfie  to  satisfy 
debt  after  the  death  of  the  debtor,  is  abolished. 


26.  If  an  owner   of  Arazi  Mirie  wishes  to  borrow  Formality 

of  mo 
gage. 


fmoney  by  mortgaging  (Vefaen  Feragh)  the  land  in  ° 


82  The  Ottoman  Land  Code. 

, 
his  possession  by  Tapu  in  order  to  secure  the  creditor, 

both  parties,  i.e.  creditor  and  debtor,  or  their  repre- 
sentatives shall  come  to  the  Kaza  Mejlis  if  in  a  Kaza, 
or  to  the  Liva  or  Ayalet  Mejlis  if  in  a  Liva  or  Ayalet, 
and  on  stating  and  explaining  in  the  presence  of  the 
Mai  Memours  the  amount  and  boundaries  of  the  land, 
the  amount  of  the  capital  and  interest  (which  should 
not  go  beyond  the  limit  authorised  by  Government), 
and  that  it  has  been  mortgaged  (Feragh  bil  Vefa) ;  it 
will  be  bound  in  an  official  deed,  and  the  Tapu  Sened 
in  hand  will  be  delivered  on  trust  to  the  mortgagee, 
Mortgage  and  the  resume  will  be  entered  in  the  special  register 
tered.regIS  kept  for  this  purpose,  and  when  the  said  debtor  wishes 
to  relieve  his  land  by  settling  the  debt,  in  the  same 
way  both  parties  shall  come  to  the  Mejlis  of  the  Country 
and  the  Deed  and  Tapu  Sened  will  be  restituted,  and 
the  entry  in  the  register  shall  be  amended. 

.Mortgagee       27.  When  a   mortgage  (Yefaen  Feragh)  as  above 


not  to 


takes  place,  neither  the  mortgagor  nor  the  mortgagee 
can  alienate  that  land  to  another ;  but  if,  as  stated  in 
Art.  117  of  the  Land  Law,  a  period  has  been  fixed, 
and  if  during  the  fixed  period  the  mortgagor  is  unable 
to  pay  the  debt,  in  order  to  pay  the  debt  from  the 
value  of  the  land  by  its  sale,  the  mortgagee,  or  if  a 
person  from,  outside  has  been  made  Yekil  by  Yekialet 
i>o\ver  of  Devrie,  then  at  the  expiration  of  the  fixed  time,  the 
person  who  is  Yekil,  may  through  the  official  recover 
the  debt  from  the  value  of  the  land  by  selling  it  by 


>  Tapu  Law.  83 

public  auction  for  from  fifteen  days  to  two  months  at 
most,  according  to  its  value  and  size.  In  such  case 
the  circumstance  of  this  Vekialet  Devrie  should  be 
I  in  the  Official  Deed  mentioned  in  the  pre- 
ceding article.  If  it  has  not  been  stated,  a  Vekialet 
Devrie  action  will  not  be  considered  (29). 

28.  When   a  person  dies  after  having   mortgaged  Procedure 
(Vefaen  Feragh)  through  the  official,  in  accordance  JJ^1^ 
with  the  above,  the  land  which  he  possesses  by  Tapu  dled- 
to  his  creditor  in  opposition  to  his  debt,  and  before 
paying  the  debt,  the  said  debt  shall  be  recovered  like 
other  debts  from  his  estate,  and  if  he  has  no  estate,  or 
if  his  estate  is  not  sufficient  for  his  debts,  the  children, 
father  or  mother  of  the  deceased  shall  not  be  able  to 
hold  such  land  without  entirely  paying  the  said  debt, 
and  the  creditor  has  the  Tight  to  prevent  them  from 
holding  such  land  until  the  complete  recovery  of  the 
said  debt.    And  if  the  deceased  has  no  heir  having  the 
right  of  inheritance  but  has  a  possessor  of  the  right  to 
Tapu,  in  this  case  the  known  Tapu  value  shall  not  be 
sought  for,  but  if  the  possessor  of  the  Bright  to  Tapu  is 
willing  to  have  it  conferred  on  him  for  whatever  price 
it  fetches  at  auction,  it  shall  be  given  to  him  for  that 
price,  and  an  amount  equal  to  one  year's  crop  of  the 
said  land  shall  be  kept  for  the  Beit  ul  Mai  from  the 
money   received   in   opposition    to    the   Tapu   value, 
and  with  the  remainder  the  said  debt  which  has  not 
been  paid  by  the  estate  of  the  deceased  shall  be  paid. 

G  2 


84  The  Ottoman  Land  Code. 

procedure   And  if  the  possessor  of  the  right  to  Tapu  refuses  to 

of  Z>rte-ath  take  tlie  land  for  sucl1  Price>  or  if  tbe  deceased  has  no 
gagor.  possessor  of  the  right  to  Tapu,  the  land  shall  be  given 
to  the  candidate  for  the  price  settled  at  auction,  in 
which  case  an  amount  equal  to  one  year's  crop 
shall  also  be  kept  from  the  said  price  for  the  Beit 
ul  Mai,  and  the  said  debt  shall  be  paid  with  the 
surplus  (30). 

NOTE. — The  provisions  of  this  article  contrary  to  the  law  dated 
23.  Ramazan,  1286,  concerning  conditions  appointing  Arazi  Mirie 
and  Mevkvfe,  and  Musakafat  and  Musteghillat  Vakfie  to  satisfy 
debt  after  the  death  of  the  debtor,  are  abolished. 


Mortgagee  29.  In  all  of  the  above  cases,  if  the  price  of  the  land 
comTupon  does  n°t  cover  the  debt,  as  the  creditor  has  no  power 
other  lands  t0  claim  the  balance  of  his  debt  from  anywhere  else  or 

of  the  (  J 

mortgagor  to  recover  it  from  the  value  'of  the  debtor's  other  lands 
which  are  not  registered  in  the  said  Deed  and  register, 
after  one  year's  produce  has  been  deducted  from  the 
equivalent  value  (Bedel  Misl)  of  the  land  which  will 
be  mortgaged  (Vefaen  Feragh)  in  opposition  to  the 
debt,  the  remainder  must  be  considered  as  equal  to 
the  said  debt,  and  the  alienation  of  land  in  opposition 
to  more  debt  (31)  shall  not  be  carried  out. 


Mortgage        30.  If  the  creditor  and  debtor  do  not  respect  the 
e  y  rules  stated  above,  and  make  a  Deed  between  them- 
selves alone,  it  will  not  be  respected  at  any  time. 


s,  Tapii  Law.  85 

Actions  on   account   of   mortgage   (Feragh   bil  Vela)  Action* 
will  }»c   heard  by  the  local  3Lejlis  (32)  in  accordance 
wifh    the    entry    in    the    register    and    the    official 
Deed  mentioned  above,  in  the  presence  of  the  31  al 
3Leinour  (33). 

NOTE.— See  Note  to  Art.  24. 


86  The  Ottoman  Land  Code. 


CHAPTER  II. 

CONCERNING   THE    CHIFTLIKS    OF   ORPHANS. 

Chiftiiks  31.  Chiftliks  of  the  category  known  as  such  among 
s'  the  people,  that  is  buildings,  animals,  oxen  (Chift), 
vineyards,  and  other  properties,  and  the  whole  arrange- 
ment including  the  Arazi  Mirie  cultivated  in  subjection 
to  these,  belonging  by  inheritance  to  orphans,  that 
can  be  let  for  a  rent  equal  to  the  interest  calculated 
at  100  paras  per  purse  on  the  estimated  value  of  the 
Chiftlik,  on  the  Timur  Bash  system,  that  is  to  say,  on 
condition  that  the  existing  properties  and  animals 
that  are  destroyed  are  to  be  replaced,  will  continue  as 
before  to  belong  to  the  orphans  until  they  reach  their 
majority. 

Manage-         32.  If  most  of  the  property  in  the  Chiftliks  of  this 

orphans'     category  is  of  a  "movable  nature  and  the  rest  of  the 

property.    pr0perty  consists  of  a  few  houses  and  straw  barns,  and 

the  loss  that  will  be  caused  by  the  destruction  of  these 

is  very  small  in  comparison  with  the  size  of  the  land, 

the   movable   property  should  at  once   be   sold   and 

the  land  which  will  be  left  as  belonging  to  the  orphans 

leased  for  whatever  rent  can  be  found. 


Tapu  Law.  87 


33.  If  the  immovable  property  of  the  Chiftliks  is  ?: 
valuable,  such  as  large  buildings,  mills,  gardens,  and  ^ph^' 
vineyards,  and  it  is  proved  according  to  the  Sheri  by  i>r"Prrty- 
the  evidence  of  possessors  of  knowledge  that  by  their 
destruction  total  loss  will  be  caused  to  the  orphans, 
then  the  whole  lot  can  be  sold  by  auction,  and,  in 
accordance  with  the  Mazbata  and  Hujjet  which  will 
be  sent  to  the  Imperial  Defter  Khane,  permission  will 
also  be  given  for  the  alienation  of  the  land  subject  to 
the  sold  property.    Land  which  is  being  used  in  con- 
nection with  a  house,  and  the  value  of  which  it  is 
proved  in  accordance  with  the  Sheri  as  above  will  be 
greatly  diminished,  in  case  of  separation  is   also  of 
this  category,  and,  as  aforesaid,  the  house  and  land 
can  be  sold  together. 

8.  Jemazi  'lakhir,  1275. 


88  The  Ottoman  Land  Code. 


III.  REGULATIONS   REGARDING  TAPU 
SENEDS. 


PEEFACE. 

The  legal  requirements  of  Arazi  Mirie  are  contained 
in  the  Imperial  Land  Law  (1)  printed  and  published 
in  the  year  1274,  and  in  the  Tapu  Law  printed  and 
published  in  the  year  1275  (2) ;  but  in  place  of  the 
certificates  stated  in  Art.  21  of  the  latter  law,  sealed 
with  the  seal  of  the  Mejlis,  which  the  law  requires 
should  be  given  to  owners  to  be  held  as  valid  until 
the  arrival  of  the  Title-Deeds  from  the  Imperial  Defter 
Khane,  in  accordance  with  the  concise  system  now 
established  in  order  to  simplify  and  secure  matters, 
printed  tabulated  forms  of  certificate  cut  out  of  the 
printed  Kochan 'Books,  sent  everywhere  and  filled  up 
as  shown  in  the  Instructions  (No.  4),  should  henceforth 
be  given,  and  though  a  long  law  extending  the  articles 
of  the  said  law  will  hereafter  be  published  as  it  is 
necessary  to  alter  and  explain  some  of  the  provisions 
of  the  said  law  (3),  for  the  present  these  instructions 
containing  the  necessary  articles  have  been  prepared. 


Regarding  Tapu  Seneds.     89 


1.  Henceforth  nobody  shall  be  allowed  under  any  All  titles 
circumstances  to  hold  Arazi  Mirie  without  title-deed.  Mirit;  to  be 
It  Shall  be  obligatory  for  persons  having  no  title-deeds  byiddee^ed 
to  take  them  out,  and  those  having  old  titles  other 

than,  the  ones  with  the  Tughra  at  top  to  change  them. 
The  Valis  Mutessarifs,  Kaimakams,  Members  of  Mejlis, 
Mai  Mernours,  Mudirs  of  Kazas,  and  Tapu  Clerks 
having  been  appointed  to  carry  out  the  necessary 
inquiries  with  regard  to  this,  in  case  of  negligence 
they  will  all  be  responsible.  The  person  appointed  to 
fill  the  post  of  Tapu  Clerk  shall  be  selected  from 
among  the  Kaza,  Mahkeme,  and  Nufus  Clerks,  who- 
ever must  be  most  trustworthy  and  efficient. 

NOTE.  —  It  has  been  notified  by  Veziricd  I'-tt'-r,  dated  26.  Zilhije, 
1290,  that  the  Defter  Khane  officials  and  Tapu  clerks  have  subse- 
quently been  a/pointed  everywhere.  The  Regulations  regarding 
the  issue  of  Title-Deeds  fur  Arazi  Mevkufe  by  the  Defter  Khane 
also  are  stated  in  No.  32. 

2.  When  a  person  is  about  to  alienate  his  land  to  Provisions 
another,  the  formalities  stated  in  Art.  3  of  the  Tapu  batas." 
Law  shall  be  carried  out,  but  as  a  separate  Mazbata 
cannot  be  prepared  for  each  case  as  required  by  the 

new  system,  at  the  time  of  alienation,  and  in  the  other 
ways  stated  in  the  printed  instructions,  printed  Maz- 
batas  shall  be  filled  up  monthly  at  the  Head-Quarters 
of  Kazas  and  Sanjaks,  and  sent,  together  with  all 
the  certificates  that  have  been  collected  during  the 
course  of  one  month,  from  the  Head-Quarters  of  the 
Sanjak  to  the  Defter  Khane.  Though  it  is  allowed 


90  The  Ottoman  Land  Code. 


in  case  of  necessity  to  send  the  certificates  collected 
in  less  than  a  month,  it  is  strictly  forbidden  to  detain 
them  for  more  than  a  month. 

3.  In  accordance  with  the  new  system,  the  custom 
of  writing  in  the  margin  of  Tapu  title-deeds  shall  be 


Writin 


deeds  ^or^"  abandoned,  and  in  every  case  a  new  title-deed  will  be 
bidden.       issued  for  which  three  piastres'  cost  of  paper  and  one 
piastre  clerk's  fee,  to  belong  to  the  local  clerk,  shall 
be  taken.     Nothing  else  shall  be  taken. 

Descent  of      4.  If  it  is  proved  that  the  land  of  a  person  who  dies 
without  heirs  having  the  right  of  inheritance,  which 


wfthout  becomes  the  right  of  Tapu,  has  been  taken  and 
heirs.  concealed,  as  stated  in  Art.  77  of  the  Land  Law  it 
shall  be  conferred  on  the  person  who  has  taken  it  if 
he  is  a  possessor  of  the  right  to  Tapu  for  its  Tapu 
value  at  that  time,  that  is  to  say,  at  the  time  when 
its  concealment  is  proved.  If  he  abstains  from  taking 
it  for  that  price,  or  if  he  is  not  a  possessor  of  the 
right  to  Tapu,  it  shall  be  conferred  by  auction  on  the 
candidate;  but  if  the  concealed  land  comes  to  light 
after  the  possessor  of  the  right  to  Tapu  has  not  without 
excuse  :  that  is  to  say,  one  of  the  valid  disabilities 
such  as  minority,  insanity,  imbecility,  or  absence  from 
his  country,  come  within  six  months  of  the  date  of 
the  arrival  of  the  Kochan  Books  required  by  this  new 
system  at  their  destination  to  the  Mejlis  of  the  Country, 
and  asked  for  a  certificate  in  order  to  get  a  Tapu 


\Regulations  Regarding  Tapu  Seneds.     91 

title-deed  for  it,  the  Tapu  value  shall  not  be  sought 
for,  but  it  shall  be  put  up  to  auction  and  offered  to 
hinl  once  for  the  price  settled.  If  he  accepts,  it 
will  be  given  to  him,  if  not,  as  it  will  be  given 
to  any  other  candidate  who  appears,  a  certificate 
should  be  taken  from  him  stating  that  he  has  with- 
drawn, and  in  order  that  everybody  should  know  the 
circumstance  from  the  beginning,  it  is  the  duty  of  the 
local  officials  to  make  it  known  to  all  in  a  beseeming 
manner. 

XOTE. —  Tlie  mode  of  auctioning  the  land  in  accordance  with  its 
size  in  the  event  of  the  owners  of  the  right  to  Tapu  withdrawing,  is 
given  in  an  amended  Art.  18,  of  the  Tapu  Law. 

I 

5.  Lands  Boz  and  Kiraj  which  are  far  away  from  Disposal  of 

habitations  may  be  given  gratis  in  order  to  be  newly  S^nds" 
opened  up  into  arable  land  on  payment  of  only  three 
piastres'  cost  of  paper,  as  stated  in  Art.  12  of  the 
Tapu  Law,  and  one  piastre  clerk's  fee  in  accordance 
with  the  new  system,  but  cultivable  land  which  has 
become  waste  (Khali)  without  owner  is  exempt  from 
this  rule  and  shall  be  given  by  auction  to  the 
,  candidate.  As  the  opening-up  of  'Boz  aiyl  Kiraj 
lands  and  making  them  into  arable  lands  is  depen- 
dent on  getting  permission  from  the  Government,  as  Permission 
stated  in  Art.  103  of  the  Imperial  Land  Law,  land 


which  has  been  opened  up  and  made  into  cultivated  ful  bef(?re 

occupation. 

land   without   getting   permission  from   Government 
f  after  the  publication  of  the  said  law  shall  be  conferred 


92  The  Ottoman  Land  Code.  / 

on  the  owner  on  payment  of  the  Tapu  value  at  the 
time  of  seizure  and  cultivation.  But  this  decision  also 
is  the  same  as  that  stated  in  the  last  article  if  witHout 
excuse  the  owner  does  not  come  within  six  months 
and  pay  the  Tapu  value  as  stated  above  and  ask  for 
a  title,  in  that  case  it  shall  be  conferred  on  him  on 
payment  of  the  present  Tapu  value. 

Definition  6.  The  Tapu  value  which  shall  be  taken  for  land 
value?*  that  is  going  to  be  conferred  on  the  possessor  of  the 
right  to  Tapu  does  not  mean  the  amount  fetched  at 
auction  or  the  amount  stated  by  a  person  from  outside, 
but  its  actual  value  in  accordance  with  the  information 
of  disinterested  possessors  of  knowledge,  having  regard 
to  the  likes  of  such  land.  It  is  contrary  to  law  to  put 
up  to  auction  the  Arazi  Mahlul  to  which  there  is  '  a 
right  to  Tapu.  The  Tapu  yalue  which  shall  be  taken 
being  the  legal  right  of  the  Beit  ul  Mai,  if  the  pos- 
sessor of  knowledge  who  gives  information  states  more 
or  less  on  account  of  having  taken  money  or  any  other 
interested  cause,  he  shall  be  punished  in  accordance 
with  the  Imperial  Penal  Code  (4).  The  Civil  and 
Financial  Officials  are  also  severally  responsible  in 
this  matter.  Exactly  the  same  attention  will  also  be 
given  in  matters  of  estimating  the  value  of  land  for 
the  customary  fees  to  be  taken. 

Duty  pay-       7.  A  fee  of  five  piastres  per  hundred  shall  be  taken 
fssueT/11    on  the  value  of  lands  when  a  title-deed  is  issued,  in 

title-deed. 


•Dilations  Regarding  Tapu  Seneds.     93 

lance  \sith  the  law  tor  the  sites  of  Chit'tlik  Imild- 
Lranlens,  vineyards,  tfcc.     But  the  rule  in  estimat- 
ihe  value  of  these  is  this  :  that  it  will  be  supposed  Mode  of 

....  .  .       ,        ,     estimating 

that  there  are  no  buildings,  trees,  or  vines  on  the  lands  value. 
on  which  they  are,  and  the  fee  of  five  piastres  per  hun- 
(^red  shall  be  taken  on  the  price  that  they  would  be 
worth  when  raw  land.  No  consideration  will  be  paid 
to  their  value  in  their  present  state.  But  a  fee  of  five 
piastres  per  hundred  on  the  gross  value  of  land  and 
trees  shall  be  taken  on  naturally  grown  woods. 

8.  A  fee  of  five  piastres  per  hundred  shall  be  taken  Duty  upon 
from  persons  who  have  no  title-deed  but  who  prove  got  by 
their  prescriptive  right  (Hak  Karar)  in  accordance  with  j^f  ol 
Art,  78  of  the  Land  Law,  that  is  to  say,  who  have  gained 

the  right  by  undisturbed  possession  for  ten  years  relying 
on  one  of  the  means  of  acquiring  possession,  such  as 
inheritance,  alienation,  or  transfer  from  a  person  who  is 
authorised  to  confer  land,  and  a  new  title-deed  shall 
be  issued  to  them,  but  this  also  is  conditional  on  its 
being  carried  out  within  six  months  as  stated  above. 
If  there  is  anyone  who  without  excuse  does  not  take 
out  a  title-deed  within  the  said  time,  ^double  fees  shall 
afterwards  be  taken  from  them. 

9.  In  accordance  with  Art.  11  of  the  Tapu   Law,  Cost  of 
three   piastres'   cost   of    paper   shall   be   taken   from   £ 
persons  who  have  old  title-deeds  issued  by  Sipahis, 
Multezims,  &c.  (5),  and  fresh  Tapu  Title-Deeds  will 


94  The  Ottoman  Land  Code. 


be  given,  but  it  is  necessary  that  the  said  old  title- 
deeds  should  be  reliable  and  valid,  that  is  to  say 
the  seal  of  the  title-deed  should  be  known  locally. 
As  papers  without  seals  or  sealed  with  an  unknown 
seal  will  not  be  looked  upon  as  valid,  persons  holding 
them  are  equivalent  to  possessors  of  land  without  a 
title-deed,  and  they  will  be  given  a  new  title-deed  on 
payment  of  a  fee  of  five  piastres  per  hundred,  cost 
of  paper,  and  clerk's  fee,  if  the  prescriptive  right  is 
proved.  If  the  prescriptive  right  is  not  proved, 
then  the  procedure  for  concealed  land  stated  in  Art.  4 
Old  title-  shall  be  carried  out.  Persons  holding  old  title-deeds 
given  up.  *  which  are  valid  as  above  stated,  should  change  them 
also  as  above  stated  within  six  months.  The  custom- 
ary fee  of  five  piastres  per  hundred  shall  be  taken  from 
those  who  do  not  change  them  within  the  said  period. 

NOTE. — The  examination  of  Title-Deeds  held  by  persons  claiming 
the  possession  of  Woods,  is  given  in  the  Regulations,  Destur,  Vol. 

in.,  p.  3oo. 

New  title-  10.  As  stated  in  Art.  11  of  the  Tapu  Law,  new 
title-deeds  snall  be  issued  to  persons  who  prove 
from  the  registers  that  they  have  lost  their  title- 
deeds  on  payment  of  only  three  piastres'  cost  of 
paper,  but  this  only  applies  to  title-deeds  with  the 
Tughra  at  the  top  which  have  been  issued  by  the 
Imperial  Defter  Khane.  Persons  claiming  to  have 
lost  the  title-deeds  issued  by  Sipahis,  Multezims, 
Muhassils,  &c.,  before  1263  shall  pay  the  customary 


A'  -^illations  Regarding  Tapu  Seneds.     95 

8  of  five  piastres  per  hundred.  Persons  who  can 
prove  from  the  registers  that  they  have  lost  their 
Tughra  title-deeds  as  stated,  should  also  within  six 
months  take  out  new  ones.  Persons  who  without 
'•use  have  not  taken  out  new  titles  within  this  period 
shall  in  every  case  pay  the  customary  fee  of  five 
piastres  per  hundred.  If  there  are  any  persons  who 
wish  to  change  their  old  Tughra  title-deeds  for  the 
new  title-deeds  which  are  now  being  organised  only 
three  piastres'  cost  of  paper  and  one  piastre  clerk's  fee 
shall  be  taken  and  the  tabulated  forms  will  be  sent  to 
the  Defter  Khane  in  accordance  with  the  new  system. 
This  course  depends  entirely  on  the  desire  being  shown 
>  by  the  owners  themselves. 

11.  When  a  person  is  going  to  alienate  to  another  his  Sale  by 
share  of  the  land  held  in  partnership  it  shall  be  offered  hL  share 
to  his  partner,  and  if  he  abstains  from  taking  it  a  deed  m  lands<    • 
shall  be  taken  from  him  and  a  note  made  of  the  cir- 
cumstance in  the  alienation  column  (6)  of  the  tabulated 

form  of  certificate.  When  land  held  in  partnership  is 
divided  a  note  should  also  be  made  in  the  same  place 
•  in  the  same  form,  stating  that  it  has  been  divided 
in  accordance  with  Art.  15  of  the  Land  Law,  which 
states  that  it  should  be  divided  in  a  just  manner  (7), 
and  the  title-deeds  wdll  be  changed. 

12.  When  one  portion  of  the  land  held  under  one  or 
more  title-deeds  is  separated  and  alienated  to  another,  a 


g6  The  Ottoman  Land  Code. 

Procedure  certificate  shall  be  given  to  the  purchaser  in  accordance 
ance*  Se  *~  w^  the  rules  that  shall  be  carried  out  in  other  aliena- 
tions, and  the  other  formalities  shall  be  carried  out. 
If,  on  account  of  the  separation  of  one  portion,  the 
boundaries  and  number  of  donums  stated  in  the  title- 
deeds  possessed  by  the  owner  of  the  land  are  altered, 
the  title-deeds  shall  be  changed. 

Duty  upon  13.  When  a  person  is  going  to  alienate  to  another  the 
andalTena-  ^^  °^  w^icn  tne  inheritance  (8)  to  him  has  not  yet 
tion.  been  legally  carried  out  in  accordance  with  Art.  10 
of  the  Tapu  Law,  a  fee  of  five  piastres  per  hundred 
shall  be  taken  from  both,  as  fee  of  inheritance  from 
the  alienor  and  as  fee  of  sale  from  the  alienee,  but 
supposing  the  said  land  has  been  inherited  by  the 
father  of  such  person  from  his  father,  it  is  not  allowed 
that  two  sets  of  inheritance  fees  shall  be  taken  at  once. 
When  the  land  the  inheritance  of  which  has  not  been 
carried  out  as  quoted  above,  is  alienated  to  another 
gratis,  both  the  fees  of  inheritance  which  shall  be  taken 
from  the  alienor  and  the  fees  of  sale  which  shall  be 
taken  from  the  alienee  shall  be  taken  on  the  estimated 
value  of  that  land. 

Certificate       14.  When  a  person  is  about  to  alienate  to  another 

to  aHenlJeen  his  land  for  which  the  title-deed  has  not  yet  arrived 

sale™6  °f  from  tlie  Defter  Khane,  but  for  which  a  certificate  cut 

out  of  the  counterfoil  books  in  accordance  with  the 

system  now  adopted  has  been  issued  to  him  after  the 


R^-iil  tfions  Regarding  Tapu  &  97 


-  of  alienation  have  been  taken,  a  Bepai 
iiicatc  shall  be  ^iveii  to  the  alienee,  and  the  c.-rtili- 
iin  the  i  i    of  the   alienor  shall  be  attached 

to  the  duplicate  of  the  new  form  of  certificate   issued 
to  the  alienee,  and  sent  to  the  Defter  Khane  in  accor- 
dance  with    the   system.     In    the  column  "reason  of 
issue  of  title-deed "   in   this   new   tabulated    form    of 
;iicate,  shall    be   written    "as   the   title-deed    has 
not   yet  come,   the  old   certificate  is  sent    herewith." 
In  case  the  title-deed  has  been  drawn  up  and  sent 
to  its  destination  in  accordance  with  the  old  tabulated 
form   of  certificate   before   the  arrival  at  the  Defter 
Khane  of  this  new  tabulated  form  of  certificate,  it 
shall  there  be  kept,  and  when  the  title-deed  drawn  in  Delivery  of 
accordance  with  the  new  tabulated  form  of  certificate  JJf1^!^ 
arrives  it  shall  be  delivered  to  the  alienee,  and  the  chaser- 
detained  title-deed  shall  be  attached  to  the  certificate 
taken  from  him  and  returned  to  the  Imperial  Defter 
Khane.      This   procedure   shall   also   be   carried   out 
exactly  with  regard  to  persons  who  have  temporary 
certificates,  and  who  die  before  the  arrival  of  the  title- 
deed. 

15.  The  alienation,  inheritance,  and  other  affairs  of  Aff>,hs  r<>- 
land  contained  in  every  village  shall  be  carried  out  J!|^; 
at  the  head-quarters  of  the  Kaza  to  which  it  is  subject,  wh^ 

i   •      "i     11  i  •     i  be  cavrie'l 

and  it  shall  not  be  carried  out  at  the  head-quarters  out. 

uother  Kaza  or  Sanjak  (9).     But,  concerning  land 
t      A'hich   the   inquiries   or   auction   shall  be  carried 


98  The  Ottoman  Land  Code. 

out  at  the  head-quarters  of  the  Sanjak,  as  stated 
Arts.  16  and  18  of  the  Tapu  Law,  and  likewise  land  of 
which  the  repeated  auction  should  be  carried  or.t  at 
Constantinople.  After  the  procedure  requisite  in 
accordance  with  the  law  has  been  carried  out,  the 
certificate  shall  be  drawn  up  locally  as  stated. 

NOTE. — An  amended  Art.  15,  was  published  on  the  7.  Etbi  ul. 
cikliir,  1304. 

Counter-         16-  As  stated  in  the  Instructions  (10),  the  counter- 
foils of       foi}s   of  certificates  shall  -remain   as   records   at   the 

certificates: 

where        head-quarters   of  each  Kaza,  and  summary  registers 
'  for  each  Kaza  shall  be  kept  at  the  head- quarters  of 
Sanjaks.     Both    the    counterfoils   and    the    summ;i 
registers  shall   be   kept   in   safe   places   in   order  to 
be  referred  to  in  case  of  necessity. 


CONCLUSION. — If  any  doubt  arises  in  carrying  out 

difficulties.  ™ 


Al~~   new  system,  explanation   should  be  asked   from 


the  Defter  Khane  Khakani. 

7.  Shaban,  1276. 


IT.  INSTRUCTIONS. 


PREFACE. 

The  provisions  of  the  law  with  regard  to  Arazi 
Mirie  are  stated  in  the  Imperial  Land  Law  (1),  pub- 
lished at  the  beginning  of  Zilhije,  127-i  (2). 
'  The  duties  of  officials  and  the  other  procedure 
concerning  this  are  also  stated  at  length  in  the 
Tapu  Law;  of  which  copies  have  been  printed  and 
sent  everywhere  (3),  in  Jemazil  akhir,  1275. 

The  provisions  of  these  two  laws  shall  henceforward 
also  be  in  force. 

In  orde .:  f  put  the  preparation  and  issue  of  Tapu  title- 
deeds  in  good  and  regular  order  now  by  reason  of  the 
new  system  which  has  been  adopted,  ,it  is  necessary 
*that  the  provisions  of  the  said  laws  should  be  simpli- 
fied and  perfected,  and  printed  tabulated  forms  of 
certificate  have  now  been  settled  to  take  the  place 
of  the  temporary  certificates  sealed  with  the  seal  of  the 
lis  which  are  issued  to  landowners,  to  be  valid 
until  the  arrival  of  the  title-deeds  from  the  Imperial 
jDefter  Khane,  as  stated  in  Art.  21. 

H  2 


ioo  The  Ottoman  Land  Code. 

The  temporary  certificates  which  have  been  issued 
until  now  and  on  which  the  duties  and  fees  have  been 
paid  need  not  be  changed  for  these  printed  tabulated 
forms  of  certificate ;  they  shall  be  left  in  the  hands  of 
their  owners  until  the  arrival  of  the  title-deeds  from 
the  Defter  Khane  and  be  valid  as  before.  These 
Instructions  have  been  drawn  up  to  explain  the  pro- 
cedure to  be  followed  henceforth  with  regard  to  the 
said  printed  tabulated  forms  of  certificate,  which  are  to 
be  sent  to  the  Defter  Khane  on  the  arrival  of  the  title- 
deeds. 

Register  !•  Different  numbers  for  each  Sanjak  have  been 
and  certifi-  placed  in  the  said  registers.  Each  register  con-  ^ 
tains  two  hundred  forms  of  certificate,  and  each 
certificate  is  in  triplicate.  The  certificates  are  bound 
in  each  register  in  consecutive  numbers,  beginning 
with  one  up  to  two  hundred ;  when  required,  they 
will  be  used  thus  consecutively  in  the  following 
manner.  In  order  to  show  properly  how  they  are  to 
be  used,  printed  forms  of  specimens  have  been  filled  up 
in  different  ways  with  the  number  of  the  specimen  at 
the  top,  and  six  copies  sent  to  each  district.  The, 
Mazbatas  to  be  sent  from  the  Kazas  to  the  head- 
quarters of  the  Sanjak  and  from  the  head-quarters  of 
the  Sanjak  to  the  Defter  Khane  having  also  been 
printed,  copies  have  been  filled  up  in  order  to  serve 
as  specimens,  and  likewise  numbered,  and  one  copy 
sent  for  each  Kaza  and  head-quarters  of  Liva.  As-' 


Instructions  Regarding  Tapn  Scncds.      101 

man-    iv-'istrrs    for    each    Kaza    will   be 
kept  at  the  head-quarters  of  the  Sanjak,  two  specimen 
*  s  of  these  will  also  be  sent  to  the  headquarters 
•eh  Sanjak. 

2.  Whenever  an  alienation  (-i),  inheritance  (5),  trans- 
fer  (0),  issue  of  title-deed  to  a  person  without  one  (7), forms, ot 

v    '    certiti 

or  exchange  of  old  title-deed  (8)  takes  place,  in  fine  when 
as  shown  in  the  specimens,  the  three  forms  of  certifi- 
cate will  be  filled  up  as  follows :  the  name  of  the 
Sanjak  opposite  the  word  "  Liva,"  the  name  of  the 
Kaza  in  which  the  land  lies  opposite  the  word  "  Kaza," 
if  it  is  land  attached  to  a  town  the  name  of  the  place, 
saying  "such  a  place  outside  the  town  "  opposite  the 
word  "  Kasaba,"  and  if  it  is  within  the  boundary  of  a  vil- 
lage the  name  of  the  village  opposite  the  word  "  Karie." 
And  afterwards,  opposite  ,  the  words  "  side "  in  the 
columns  for  boundary,  the  present  true  boundaries  of 
the  land  will  be  written ;  afterwards,  in  the  column  for 
donums  the  number  of  donums  will  also  be  inserted, 
as  shown  in  the  specimen  forms  ;  but  in  places  where  in 
matters  of  fixing  the  extent  of  land  instead  of  donum,  it 
is  customary  to  say  "  it  requires  so  much  seed,"  instead 
of  showing  the  number  of  donums  the  .amount  of  seed 
which  the  land  requires  (9)  will  be  inserted  in  the 
column  for  seed,  afterwards  the  column  for  the  kind  of 
the  land  will  be  filled  in  as  follows  if  the  land  is  arable 
land  :  against  the  word  "  Ushrli  "  (titheable)  arable  land 
will  be  written,  as  shown  in  the  specimen  forms  Nos. 


IO2  The  Ottoman  Land  Code.         f 

Certificate:  1,  3,  6  ;  if  it  is  grass  land,  grass  land  will  be  written,  as 

how  to  be 

filled  up.  shown  in  specimen  No.  5  ;  if  it  is  vineyard,  garden,  or 
orchard  instead  of  arable  or  grass  land,  the  word  vine- 
yard, garden,  or  orchard  will  be  written ;  if  it  is  land 
paying  a  fixed  equivalent  of  tithe,  such  as  ground  of 
a  Chiftlik  (10),  wood  (11),  forest,  site  of  a  mill,  ground 
of  a  threshing-floor  (12),  sheepfold  (unroofed),  straw- 
barn  (13),  sheepfold  (roofed)  as  shown  in  specimen 
No.  2,  the  space  opposite  the  words  equivalent  of 
tithes  will  be  filled  up  with  whichever  of  the  said 
kinds  it  belongs  to  (14),  and  the  amount  of  the 
equivalent  of  tithes  will  be  fixed ;  if  it  is  summer 
or  winter  pasturage  (15),  or  grass  land  (16),  as  shown 
in  specimen  No.  4,  it  will  be  written  opposite  the  word 
taxable  (Kessimli),  and  the  amount  of  the  tax  will 
be  expressed ;  if  it  is  one  of  the  said  kinds  of  lands 
attached  to  a  Chiftlik  (17),  in  order  that  its  subjec- 
tion to  a  Chiftlik  should  be  known,  in  the  certificate 
for  each  piece,  as  shown  in  specimen  No.  3,  in  the  small 
space  opposite  "  subject  to  Chiftlik  so  and  so  "  will  be ' 
written.  And  in  the  certificate  that  will  be  given  for 
the  ground  of  the  Chiftlik  building  itself,  as  shown  in 
specimen  No.  2,  opposite  the  word  "  Titheable  "  will  be  € 
written  Chiftlik  site,  afterwards  the  name  of  the 
Chiftlik  will  be  written  in  the  said  small  space.  Then 
the  column  for  cause  of  issue  of  title-deed  will  be 
filled  in  as  follows : — If  there  is  an  old  title-deed,  as 
shown  in  specimen  1,  in  the  column  for  cause  of  issue 
of  title-deed,  the  word  "  exchange  " ;  and  if  the  titlo  ' 


Instructions  Regarding  Tapu  Seneds.     103 

!  has  been  lost,  as  shown  in  the  specimens  2  and 
.">  the  word  "'lost"  will  be  written,  and  if  the  number 
and  date  of  the  lost  title-deed  are  known  they  will  be 
noted  opposite  the  word  "  Lost."  If  there  is  no  title- 
divd  (IS),  and  it  is  really  in  the  possession  of  a  person 
who  has  proved  his  prescriptive  right  (Hak  Karar)  by 
being  in  undisturbed  possession  for  more  than  ten 
years,  as  shown  in  specimen  No.  6,  the  circumstance 
and  the  expression  "  new "  will  be  wTitten  in  the  New  title- 
column  for  cause  of  issue  of  title-deed,  and  the 
estimated  price  of  the  land  will  be  written  in  the 
column  for  estimated  value,  and  the  fees  at  five  per 
cent,  will  be  written  in  the  column  for  customary  fees. 
\  If  it  is  dead  land  (Erazi  Mevat)  and  the  title-deed  is 
to  be  issued  gratis  (19),  the  sentence  will  be  written  in 
the  column  for  cause  of  issue  of  title-deed.  In  every 
kind  of  land  the  would-be  possessor's  name  and  that 
of  his  father  will  be  written  in  the  proper  column. 

3.  When  the  alienation  of  a  piece  of  land  is  going  Certifi- 
to  be  carried  out,  firstly,  the  columns  stated  in  Art.  2  to  be  tilled 
will  be  filled  up  as  necessary ;  secondly,  as  shown  in  up> 

»  specimen  1,  opposite  the  word  "alienation,"  the 
name  and  address  of  the  alienor  and  his  father  will 
be  entered;  thirdly,  in  the  column  for  price  of 
alienation,  the  amount  at  which  the  land  has  been 
sold  will  be  written,  and  in  the  column  for  customary 

.  fees,  the  fees  of  alienation  at  five  per  cent,  on  the  said 
price  will  be  entered.  If  such  land  has  been  alienated 


TO4  The  Ottoman  Land  Code. 

gratis,  the  estimated  price  will  be  entered  in  the  column 
iiied  f°r  estimated  price,  and  the  fees  of  alienation  at  five 
11  1>  per  cent,  on  the  estimated  value  will  be  entered  in  the 

column  for  customary  fees  (20).  If  it  has  been  exchanged 
with  other  land  (21)  according  to  the  explained  method, 
the  half  of  the  total  estimated  values  of  both  lands 
shall  be  entered  in  the  column  for  estimated  value, 
and  the  fee  that  shall  be  taken  at  five  per  cent,  on 
that  half  value  shall  be  entered  in  the  column  for 
customary  fees. 


4.  When  the  inheritance  of  land  (22)  is  going  to  be 

cate:  how 

rilled  up  carried  out  after  the  procedure  stated  in  Art.  2  has 
c/ssionTo"  been  carried  out,  firstly,  if  the  land  has  been  inherited 
from  the  father,  as  shown  in  specimen  2,  "  by  the 
death  of  the  father,  so  and  so,"  will  be  written  in  the 
column  for  inheritance  ;  and  if  it  has  been  inherited 
from  the  mother,  the  name  of  the  mother  ;  and  if  from 
the  children,  the  name  of  the  son  or  the  daughter 
should  be  written.  In  every  case  the  date  of  the  death 
of  the  deceased  should  be  noted.  Secondly,  the 
estimated  value  of  the  land  should  be  entered  in  the 
column  for  estimated  value,  and  the  fees  at  five  per 
cent,  in  the  column  for  customary  fees. 

Consider-       5.  As   stated  in   Art.   10   of  the   foregoing   Tapu 

to°bemsetey  -^aw  (23),  when  the  alienation  of  land  which  has  not 

yet  been  transferred  takes  place,  the  price  of  aliena- 

tion  will   be   entered   in   the    columns   for   price   of 

alienation  and  estimated  value,  and  the  total  fees  that 


Instructions  Regarding  Tapu  Seneds.     105 

• 

will  be  taken  at  five  per  cent,  on  each  of  these  amounts  Estimated 
will   be  entered    in    the   column    for   customary   fees.  Btafce<j  jn 
If  land  which  lias  not  yet  been  transferred  has  been 
alienated  gratis,  its  estimated  value   will  be  entered  without 
in  the  column   for  estimated  value,  and  the  fees  for  tion. 
alienation  and  transfer  that  will  be  taken  according 
to  its  value  will  be  entered  in  a  lump  sum   in   the 
column  for  customary  fees. 

6.  After  the  procedure  stated  in  Art.  2  has  been  Description 

of  auce.-tor 

carried  out  with  regard  to  certificates  that  will  be  to  be  given 
given  to  possessors  of  the  right  to  Tapu,  as  shown  in 
specimen  3,  the  name  and  date  of  death  of  the 
L-  deceased  and  his  relationship  to  the  possessor  of  the 
right  to  Tapu  are  written  at  the  head  after  the  printed 
sentence  "Eight  to  Tapu  (24) ;  "  afterwards,  the  value 
assessed  by  disinterested  possessors  of  knowledge  is 
written  by  the  side  of  the  printed  sentence,  "  Equiva- 
lent Value." 

7.  In  certificates  that  will  be  given  for  pure  Mahlul  Certificate 
Land  which  has   been  conferred  by  auction  (25),  as  MaHdT" 
shown  in  specimens  4  and  5,  the  way  in  which  it  has  [o^fiij^ 

» become  Mahlul,  that  is  to  say,  if  there  is  no  possessor  UP- 
of  the  right  to  Tapu,  or  there  being  one  who  abstains, 
the  matter  will  be  written  by  the  side  of  the  sentence, 
"  Pure  Mahlul,"  and  the  price  fixed  at  auction  will  be 
written  in  the  column  for  auction  price,  and  if  it  is 
concealed  (26)  or  disused  land  this  procedure  shall  be 
carried  out  exactly. 


io6  The  Ottoman  Land  Code.  / 

I 

Footofcer-  8.  After  the  procedure  stated  above  has  been 
hovelled  completely  carried  out,  and  the  three  forms  of  the 
UP-  certificate  have  been  filled  in  in  the  stated  manner,  as 

shown  in  the  specimens  :  in  the  first  empty  space 
between  the  lines  at  the  foot  of  the  certificate  the  kind 
of  the  land,  in  the  second  the  names  of  the  owner  and 
his  father  will  be  written,  and  the  place  for  the  date 
will  be  filled,  and  by  the  side  of  the  printed  word 
"  Mudir  "  the  word  "  Kaza  "  is  written,  if  it  is  attached 
to  the  Kazas,  and  the  word  "Mai,"  if  it  is  at  the 
Head-Quarters  of  the  Liva.  And  if  the  land  is  in 
partnership,  the  amount  of  the  share  is  stated  in  the 
first  empty  space. 

> 

Duplicate :  9.  After  the  clerical  procedure  stated  above  has  been 
how  made.  compieteiy  carried  out,  the  right  side  of  the  certifi- 
cate, that  is  to  say,  the  paper  with  "  Defter  Khakani  " 
written  at  the  top,  shall  be  cut  off,  and  after  having 
been  sealed  in  the  Kazas  by  the  Hakim,  Mudir, 
Treasurer,  and  Clerk,  at  the  Head-Quarters  of  the 
Sanjak  by  the  Hakim,  Mai  Memour,  Treasurer,  and 
Clezk,  shall  be  given  to  the  person  who  is  going  to  be 
the  owner  of  the  land ;  afterwards,  the  duplicate  of  • 
the  certificate  shall  likewise  be  sealed  and  dated,  cut 
off  at  the  place  shown  in  the  specimen,  sewn  on  to  the 
old  title-deed,  if  there  is  one  for  that  land,  and,  if  not, 
kept  by  itself. 

NOTE. — It  has  been  notified  by  Vezirial  letter,  dated  26.  Zilhije,  „ 
1200,  that  separate  Defter  Khane  and  Tapu  Memours  having  been 


Instructions  regarding  Tapu  Scneds.    107 

///  the  necessary  parts  of  the  Ottoman   Dnmi, 

',..-/  hm/'i?  the 

or    T"/>"    Clerk,   'in'/   in    juices   where   the    '• 
'  established,  the  Mutessarifs,  Kaimah-nins,  and  Mnl 
•  itrs,  should   /V//<y»-/-</>-////,   until   it    is  i»'f    into  execution,  //< 
•  i's  of  the  soil. 

10.  The  certificates  collected  in  each  Kaza  during  Transmis- 
the  course  of  one  month,  together  with  the  old  title-  tificates. 
dt-ods  attached  to  them,  will  be  sent  to  the  Head- 
Quarters   of  the  Sanjak  to  which  they  are  subject, 
enclosed  in  a  Kaza  Mazbata,  filled  up  as  shown  in  the 

'    Specimen  No.  7,  Kaza  Mazbata,  which  will  be  sealed 
by  the  Mejlis. 

f 

11.  In  the  manner  stated  two  forms  of  each  certifi-  Certificate 

to  be  IB 

cate  will  be  cut  off,  the  third  form  will  remain  as  a  three  parts. 
counterfoil  and  will  be  kept  on  the  spot  in  order  to  be 
referred  to  in  case  of  necessity,  and  the  appendix  of 
this  counterfoil  will  also  be  likewise  sealed  at  the  same 
time  as  every  sheet  is  filled.     The  Mudir  of  the  Kaza 
and  the  Clerk  are  responsible  for  the  keeping  of  these 
counterfoils.     Exactly  the  same  procedure  will  also  be  Counter- 
,  carried  out  in  the  Kaza  which  is  esteemed  the  Head- 
Quarters  of  the  Liva, 

12.  Separate  summary  registers  for  each  Kaza  will  Summary 
be  kept  at  the  Head-Quarters  of  the  Sanjak.     These  how  kept. 
registers  are  also  printed,  and  the  summary  of  the 

*  certificates   will  be    entered,  as  shown  in  specimens 


io8  The  Ottoman  L:\nd  Code. 

• 

felTstor7:  Nos-  8  and  9  of  the  summary  register,  thus  :— Firstly, 
how  kept.  after  the  name  of  the  Kaza  has  been  filled  in  at  the 
top,  the  name  of  the  village  will  be  written  under  it, 
and  if  the  land  is  not  in  a  village,  but  attached  to  a 
town,  then  the  name  of  the  town  will  be  written  in  the 
column  under  the  word  "  town."  When  the  name  of 
a  village  has  been  entered  in  a  column  and  it  is 
necessary  that  the  name  of  that  village  should  again 
be  written  in  the  column  next  under  also,  no  need 
remains  to  write  the  name  of  that  village  again,  and 
the  sign  "  m  "  will  be  put.  Secondly,  the  kind  of  the 
land  will  be  entered.  Thirdly,  if  the  extent  of  the 
land  has  been  fixed  in  donums  in  the  certificate  it  will 
be  written  in  the  empty  column  under  the  column  for  > 
donums,  and  if  it  has  been  fixed  by  seed  it  will  be 
written  in  the  empty  column  under  the  column  for 
seed.  Fourthly,  the  name  <of  the  person  who  will  be 
possessor  of  the  land  will  be  filled  in  in  the  proper 
column  with  the  number  of  the  certificate  under  it, 
and  the  number  of  the  book  from  which  it  has  been 
extracted  will  be  noted  under  the  column  for  number 
of  register.  Fifthly,  the  total  of  the  fees  for  title- 
deed  or  Muajele  and  cost  of  paper  in  the  certi-  • 
ficate  will  be  entered  in  the  column  under  the 
receipts  column,  and  the  total  once  in  five  of  the 
figures  in  the  receipts  column  will  be  put  in  the 
column  for  total  by  the  side  of  it.  In  whatever 
column  the  first  of  the  month  occurs,  the  whole  of  the 
totals  will  be  there  collected,  and  the  name  of  the 


^Instructions  regarding  Tapu  Seneds.    109 

mouth  in  which  tln-y  will  be  entered  in  the  Treasury  Summary 
Book   will  be  entered   in  Greek  style,  in  the  column  re-lsters 

>h-l>ook,  by  the  side  of  the  column  for  summary 
of  totals.  Sixthly,  the  date  on  which  the  certificates 
are  sent  to  the  Imperial  Defter  Khane  will  be  entered 
in  the  column  for  it ;  under  it,  in  the  column  for 
"  events  "  in  the  Summary  Kegister,  such  events  as 
inheritance,  alienation,  &c.,  and  such  matters  as  land 
being  attached  to  a  Chiftlik  should  be  entered. 

13.  After  the  tabulated  forms  of  certificate  coming 
from  the  attached  Kazas  and  those  used  at  the  Kaza 
considered  the  Head -Quarters  of  the  Liva  have  been 
entered   in   the   Summary   Kegister   in   the   manner 
stated,  as  shown  in  Specimen  No.  10,  "  Liva  Mazbata," 
a  Liva  Mazbata  will  be  prepared,  the  Mazbatas  coming 
from  the  attached  Kazas,  together  with  the  tabulated 
forms  of  certificate  collected  at  the  Head-Quarters  of 
the  Liva  will  be  put  in  an  envelope  enclosed  in  the 
said  Mazbata,  the  whole  will  be  put  in  an  envelope 
addressed  as  follows  : — 

On  the  top — Land  Mazbata. 

In  the  middle — To  the  Defter  Emanet. 

At  the  bottom — From — Kaza — Sanjak. 

which  will  be  put  in  the  post  and  sent  direct  to  the 
Defter  Khane. 

14.  The  date  of  the  arrival  of  the  Tapu  title-deeds 
prepared  and  sent  from  the  Imperial  Defter  Khane 


no  The  Ottoman  Land  Code. 

issue  of  will  be  entered  in  the  column  for  the  date  of  arrival 
dS. l  '  of  the  -title-deeds  in  the  Summary  Eegister  imme- 
diately on  receipt  at  the  Head- Quarters  of  the  Sanjak  : 
those  for  the  Kaza  administered  at  the  head- quarters 
will  be  delivered  to  their  owners  against  the  certifi- 
cates which  they  hold :  those  for  the  attached  Kazas 
will  be  sent  at  once  to  their  destination  and  likewise 
delivered  to  their  owners  against  the  certificates 
which  they  hold  :  the  certificates  thus  collected  will 
be  sent  to  the  Head- Quarters  of  the  Sanjak,  and, 
together  with  those  collected  there,  will  be  sent  in 
sets  to  the  Imperial  Defter  Khane. 

15.  Shaban,  1276. 


1 1 1 


V.  A  LAW  ON  THE  REGISTRATION  OF 
CENSUS  AND  OF  PROPERTIES. 


This  law  consists  of  one  part  subdivided  into  seven 
chapters  and  a  conclusion. 

The  first  chapter  relates  to  the  number  and  the 
mode  of  appointment  of  the  officials  to  be  appointed ; 
the  second  to  the  duties  of  the  officials  and  to  the 
measures  to  be  adopted  for  the  registration  of  census 
and  of  properties ;  the  third  to  the  duties  of  the 
managing  commissions,  to  the  management  and 
apportioning  of  the  verghi  and  ternetu  taxes,  and  to 
other  particulars ;  the  fourth  to  the  village  divisions 
of  six  villages  each,  and  of  their  duties ;  the  fifth  to 
the  dealing  with  the  occurrences  (vukuat) ;  the  sixth 
to  the  management  of  "  seneds,"  papers,  record-books 
and  kochans;  the  seventh  to  the  fixing  and  preser- 
vation of  the  plates  bearing  the  numbers  with  which 
the  properties  are  to  be  marked  ;  and  the  conclusion 
to  matters  of  general  bearing. 


1 1 2  The  Ottoman  Land  Code. 


CHAPTEB  I. 

Registra-         ^  he  two  classes  of  officials  to  be  appointed  for  the 

CT^andof"  reoi'stration    of    census    and    of    properties    are    the 

properties,  registrars  and   the  assessors.     The  registrars  will  be 

twenty-two    in    number   under   a   chief,   and    at   the 

beginning    of    the    registration    there    will    be    four 

assessors,  twenty -seven  officials  in  all. 


/ 


CHAPTER  II. 

1.  This  staff  will  begin  the  registration  in  the  head-  Duties  of 
quarters  of  ^he  province  by  dividing  itself  into  two  ™^stl 
divisions ;  each  division  taking  up  the  work  in  one  of  officers. 
the  equal  halves  east  and  west,  into  which  the  head- 
quarter city  or  town  is  to  be  divided.     As  the  officials 

will  in  the  beginning  be  in  the  same  place  with  their 
chief,  most  of  them  will  have  learned  the  work  when 
4  the  registration  of  the  head-quarter  is  completed. 
They  will  then  proceed  by  degrees  into  the  districts 
and  Xahies,  where  they  will  part  into  four  divisions. 
Each  division  will,  at  the  place  where  it  begins  the 
work,  elect,  through  the  notables  of  the  place,  two 
salaried,  able,  and  trustworthy  assessors,  and  will  then 
proceed  with  the  registration. 

2.  When,  after  the  completion  of  the  registration  of  Registra- 
the  hea1. -quarter  and  of  the  book  thereof,  the  regis- 
trutioA  begins  in  the  surrounding  country,  district   ' 
district,  at  four  places  as  stated  above.     The  first  and 
superior  registrar  in  each  division  will  be  the  officer 

of  registration,  and  the  others  will  be  rough-copy 
clerks,  copyists,  and  recorders.  As  the  assessors  value, 
the  assessments  must  be  recorded  in  the  books.  It  is 


H4  The  Ottoman  Land  Code. 

Assess-  essential  that  the  assessments  be  made  correctly,  and 
the  registration  be  proceeded  with  easily  and  quickly. 
In  the  registrations  of  the  head-quarters,  assessment  by 
the  (paid)  assessors  will  be  sufficient,  because  all  the 
officials  and  assessors  being  together,  and  the  com- 
mission of  registration  being  on  the  spot,  errors  in  the 
assessments  will  be  scarce,  and,  should  any  occur,  it  is 
the  duty  of  the  commission  to  correct  them  at  once. 
In  the  country,  however,  where  each  division  of 
officials  will  have  only  two  assessors,  with  a  yiew  to 
secure  correctness  of  assessment  and  despatch  of 

Assessing  registration,  an  assessing  committee  of  not  more  than 
e'  six  persons  will  be  formed  at  the  villages  where  the 
officials  arrive,  from  among  the  notables  and  trust-  • 
worthy  inhabitants  of  those  and  the  neighbouring 
villages.  The  paid  assessors  will  be  together  with  the 
assessing  committee,  who  will  assess  the  properties 
first,  and  if  their  assessment  satisfies  the  officials  and 
the  assessors  that  it  represents  the  correct  value  of  the 
property  concerned,  it  will  at  once  be  entered  in  the 
rough  list.  Should  there  be  any  mistake  it  will  be 
amended  as  the  locality  and  condition  of  such 
property  and  its  comparison  with  similar  properties 
may  direct.  Then  the  officials  will  proceed  to  another 
village  to  register  in  the  manner  stated. 


Assessing  3.  Of  the  six  persons  appointed  as  stated  above 
from  among  the  notables  and  trustworthy  inhabitants 
of  the  villages  to  form  the  assessing  committee,  one! 


committee 


Registration  of  Census  and  Properties.   1 1 5 

» 
will  be  the  president,  and  the  other  five  the  members 

of  the  commission.  They  will  duly  perform,  in  the 
manner  above  described,  the  work  of  assessment, 
which  is  their  special  duty  at  the  time  of 
registration,  and  will  always  make  inquiries  with 
reference  to  the  applications  which  the  people  make 
\  regards  the  question  of  assessment,  and  will  also 
consider  any  dispute,  which  may  be  settled  by  arbitra- 
tion. The  mode  of  election  of  the  members  of  this 
commission  and  their  duties  in  these  matters  are  laid 
down  in  the  special  law. 

4.  Everybody  knows  that  in  the  towns  and  villages  choice  of 

%*  the  Mukhtars  are  of  the  lowest-class  people,  and  that 

notables  and  honest  people  decline  this  office  ;  while, 

in  order  that  reforms  be  carried  out  properly,  it  is 

most  essential  that   the  conditions  of  the  officials  who 

are  in  these  matters  be  such  as  to  inspire  confidence  to 

the  Government  and  the  people.     The  first  duty  of  the 

-registration  officials  when  arriving  at  a  place  will  be  to 

dismiss   the   Mukhtars   at    once,   and    to    elect    new 

Mukhtars,  honest   and   trustworthy  people,  from   the 

•  notables  of  the  place. 


5.  The  election  of  the  Mukhtars  will  be  performed  in  Mukhtars. 

elected. 


the  head-quarters  of  the  province,  through  the  Vali,  the  n< 


Financial  Officer,  the  Mufti,  the  Cadi,  and  one  or  two 

(Moslem)  ecclesiastics  enjoying  general  confidence;  in 

'  the   head-quarter   of  the    sub-province,   through    the 

I  2 


1 1 6  The  Ottoman  Land  Code. 

__ 

Mukhtars :  Mutessarif  or  Kaimakam,  the  Financial  Officer,  and 

how 

elected.  oue  or  two  persons  from  the  ecclesiastics  or  notables  of 
the  people,  or  of  the  merchant  class,  possessing  certain 
grades;  and  in  the  district  through  the  Mudir,  the 
Mui'ti,  and  one  or  two  notables. 

Enumera-        6.  The  second  step  of  the  officials  after  the  election 
dwellings.   °^  the  Mukhtars  is  to  count  all  houses  and  dwelling- 
places,  and  make  a  list  of  them  ;  then  to  prepare  the 
number-book  of  the  city,  town,  or  village,  of  which 
the  registration  is  to  commence,  and  to  write  on  the 
c  walls  the  old  names  of  the  quarter  and  street  without 

taming  of 

streets.       alteration,  and  the  numbers  of  the  houses.     When  the 
correctness  of  these  numbers  and  names  is  ascertaine< 
plates  will  be  prepared  accordingly  and  fixed. 

Begistra-  7.  After  the  numbers  are  marked  correctly  it  is 
census  and  time  to  begin  the  registration  of  census  and  properties, 
properties,  j^.  js  known  that  hitherto,  owing  to  the  insufficiency  of 
the  measures  adopted  for  registration,  the  notables 
and  nobility  of  the  population  have  been  daring  to 
conceal  persons  and  their  wealth  with  a  view  to  save 
their  children  from  military  service,  and  to  pay  less 
taxes  than  other  people,  and  that  they  have  been 
neglecting  to  show  the  wealth  and  persons  of  other 
people  so  as  to  buy  their  silence.  To  prevent  the 
recurrence  of  this,  four  measures  will  be  taken : — 

i.  Whosoever  conceals   person  or  wealth  will  be 
imprisoned  with  hard  labour  for  three  years. 


Rcgis/r-tion  of  Census  and  Properties.    117 

ii.  AT    tlic    time    of    the    registration   all   male  Census  of 

persons,  grown  or  young,  will  go  to  the  registrars 
I  report  themselves  to  them.  Women  will  be 
registered  on  the  report  of  their  protectors  or  Of  females, 
representatives.  After  the  registration  a  census 
permit  will  be  given  to  each  individual.  Unless 
this  permit  is  produced  no  law  suit,  whether  relating:  Census 

0  permit. 

to  the  Sheri  or  the  Nizam,  will  be  heard  before  any 
Sheri  or  Nizam  Court,  nor  shall  any  passport  be 
issued. 

iii.  All  births  and  deaths  will  be  reported  in  time 
and  registered  in  a  special  book. 

iv.  Several  days  before  the  registration  begins 
notice  in  print  will  be  given  to  all  the  people  of  the 
punishment  to  which  concealers  of  person  will  be 
subjected  of  the  above  second  and  third  measures. 

8.  At  the  time  of  the  census  registration  the  wealth  inquiries 
and  income  of  each  person  is  at  first  to  be  inquired  3^°  j^I 
alter  from  the  person  himself,  and  if  this  information  Pert-v- 
seems  unsatisfactory,  considering   the   Trade  and  the 
name  of  the  man,  inquiries  will  be  made  from  notables 
believed   to   be   reliable,    and   the   satisfactory  infor- 
mation as  to  the  man's  standing  thus  obtained  will  be 
registered  in   the    book.     His   old   tax   will    also   be 
marked  against  his  name  in  the  special  column  in  the 
book. 


9.  When  registering   properties   the   true   value  of 


1  1  8  The  Ottoman  Land  Code. 

True  value  houses,  khans,  shops,  and  similar  properties,  of  farm?, 
to  ho  mills,  factories,  and  other  income-bearing  properties,  of 
unbuilt  plots  of  land,  vineyards,  gardens,  and  of°all 
lands  in  general,  is  to  be  brought  to  light  in  the 
manner  laid  down  in  Art.  2,  according  to  their  situation 
and  their  true  value.  The  annual  income  of  each  kind 
of  property  and  land  is  to  be  ascertained,  and  searches 
and  inquiries  and  inspections  of  title-deeds  are  to  be 
made  to  find  which  of  the  properties  bear  income  and 
which  do  not  ;  which  of  the  houses  are  occupied  by  the 
particulars  owners  and  which  are  let  ;  by  what  title  the  owners 
o  piopei  y.  pOSgegs  ^6  properties,  whether  as  rnulk  by  ijaretein  or 
by  tapu.  All  these  particulars  will  be  registered  in 
the  proper  place  in  the  special  book  under  general  and  | 
special  numbers.  Any  sales  and  transfers  which  take 
place  at  the  time  of  the  registration  will  be  recorded 


tain  saleT"  ^    the    column    of    remarks,   and    in    the    book   of 
occurrences. 


Registra-         10.  The  number  and  particulars  of  mosques,  mes- 

public       jids,  Government  buildings,  schools,  places  of  worship 

buildings.    be]onging    to   all   communities    and    similar    public 

buildings    should,  at  the  time  of  registration,  be  re- 

corded  for  information  in  the  proper  order. 

Property         11.  Properties  of  any  foreign  subjects  assigned  to 

;ns'     their  wife  or  relatives  of  Ottoman  nationality  should  be 

registered   in   the   ordinary  manner.     As   to   foreign 

subjects  who  do  not  possess  property  or  house,  but  live 


Registration  of  Census  and  Properties.    119 

in  hired  shops  and  stores,  the  conditions,  circumstances,  census  of 
income  and  trade  of  such  will  be  separately  recorded.     ahens- 


12.  The  registration  officials  wiil  examine  the  title- 
deeds  of  all  kinds  of  properties  and  lands.  They  will  J 
inform  the  officers  of  verification  of  lands,  of  any 
transfers  which  may  not  have  been  formally  carried 
out,  and  will  refer  the  matter  to  these  officers  in  order 
that  the  title-deeds  be  renewed  by  the  Mehkerae  or  the 
Evkaf.  The  new  title-deeds  of  the  proprietors  who 
are  really  unable  to  pay  the  transfer  fees  will  be  made 
out  gratis  by  the  Cadis  and  the  directors  of  Muajele 
properties  on  stamp  duty  being  paid  in  such  cases. 
The  new  title-deeds  should  bear  a  record  of  the  name  Contents  of 
of  the  quarter  and  street,  and  of  the  form,  measurement,  tl1 
and  the  number  of  the  house.  In  title-deeds  of  lands, 
the  general  numbers,  the  limits  and  the  form  and 
measure  given  in  the  emlak  book,  should  be  recorded. 


I2O  The  Ottoman  Land  Code. 


CHAPTER  III. 

Taxes: how      It  being  important  that  in  all  the   provinces   the 
agedane!n"  apportioning,  collection,  and  management  of  the  taxes 
appor-        to  be  imposed  after  the  registration  of  census,  pro- 
perties and  income,  be  put  under  such  a  system  as  to 
win  the  confidence  of  the  people  and  prove  advantageous 
and  easy  to  the  Imperial  Treasury,  the  operations  are 
hereunder  described. 

Managing       !•  For   the   apportioning,   collection,  and   manage- 
commis-     ment  of  the  taxes,  a  Commission  will  be  formed  of  the 

sion. 

director  of  Census,  the  director  of  Muajele  properties, 
and  three  Moslem  and  three  non-Moslem  notable 
(Ottoman)  subjects  of  unspotted  reputation,  under  the 
presidency  of  the  financial  officer  and  the  supervision 
of  the  Yali  of  the  province.  Other  persons  may,  if 
needed,  be  invited  to  participate  in  the  deliberations. 
The  above-mentioned  six  Moslem  and  non-Moslem  < 
members  will  be  elected  by  the  Vali,  the  Muhasebiji, 
the  Cadi,  and  the  Mufti,  who  will  submit  the  result  of 
the  election  to  the  Sublime  Porte  by  a  Mazbata  under 
their  seals  reporting  the  qualifications  of  the  elected, 
Rotation  of  whereupon  an  Imperial  Order  will  be  issued  and  carried 
members.  out  Qne  i}iM  of  ^^  elected  members  will  leave  * 


commis- 
sion. 


Registration  of  Census  and  Properties.    121 

office  every  year,  and  others  will  be  elected  and  ;ip- 
poiuted  in  their  place  in  the  manner  described. 

2.  This  Commission  will  detach  receipt  forms  from  Duties  of 
the  printed  special  counterfoils  to  be  prepared  every  ™ 
three  years  according  to  the  accounts  extracted  from 
the  Einlak  and  trade  permit  books.     They  will  fill  the 
amounts  in  the  receipt  forms  of  verghies  and  will  irive 
these  to  the  Mukhtars,  and  will  hand  the  trade-permit 
forms  to  the  heads  of  tradesmen.     The  latter  will  fill 
in  the  trade-permit  forms,  the  names  and  amounts,  in 
the  presence  of  the  elders  and  notables  of  the  quarter 
according  to  the  account  given  them.     As  they  (the 
i  Mukhtars  and  heads  of  tradesmen)  collect  the  taxes  by 
fixed  instalments,  they  will  note  the  receipts  in  the 
receipt  column  of  the  Verghi  forms,  and  on  the  back  of 
the   trade   permit  forms.     When  the  collections   are 
completed  they  will  hand  these  forms  to  the  Treasury, 
together  with  the  last  instalment.    The  revenue  officials  Duty  of 
will,  after  comparing  them  with  the  counterfoils  and  officers. 
with  the  book,  stamp  them  on  the  special  place  with 
the  seal  marking  "  Eeceived."    These  receipts  will  then 
,be  returned  to  the  Mukhtars  and  heads  of  tradesmen 
to  be  distributed  one  by  one  to  the  respective  people  to 
whom  they  belong. 

3.  The  receipt  forms  of  the  military  contribution  tax 

will  be  written  up  from  the  counterfoils  according  to 

*the  accounts  extracted  every  year  from  the  census  book, 


122  The  Ottoman  Land  Code. 

' 
Receipts  for  and  will  be  handed  to  the  heads  of  the  communities 

contribu-    for  collection  of  the  tax,  and  the  transactions  will  be 
'ax'     conducted  in  the  manner  explained  in  Art.  2. 

issue  of  4.  At  the  expiration  of  the  period  for  which  the 
receipt  forms  of  the  taxes  mentioned  are  prepared,  new 
forms  will  be  distributed  at  the  beginning  of  March. 
The  formalities  of  these  should  be  completed  by  the 
end  of  that  month  at  the  latest,  and  the  collection 
should  commence.  After  the  collection  is  completed 
the  transaction  will  be  carried  out  in  the  manner 
described  in  Art.  3  (probably  2  is  meant). 

Scale  of  5.  The  Commission  will  inspect  the  repairs  and  the  new 
buildings  in  the  city  and  its  neighbourhood,  will  assess 
and  register  the  value  thereof  and  assess  taxes  on  them 
at  four  per  thousand  on  the  total  value,  four  per  cent, 
on  rent,  and  three  per  cent,  on  trade  profits.  Besides, 
a  registration  fee  for  one  year  only  will  be  taken  at  the 
rate  of  one  per  thousand  from  the  total  of  the  value  and 
Appiica-  rent,  and  half  per  cent,  on  trade  profits.  The  excess  of 
excess.  tax  (on  the  old  assessment)  thus  occurring  will  be  paid 
to  the  Treasury  towards  the  decrease  caused  by  the « 
burning  or  demolition  of  the  properties  originally 
registered.  When  a  great  fire  or  earthquake  or 
calamity  happens,  and  the  tax  on  the  properties 
registered  is  decreased  to  such  an  extent  as  not  to  be 
covered  by  the  increase  from  new  buildings,  the 
decrease  cannot  be  made  up  by  increased  taxation  on 


Registration  of  Census  and  Properties.   123 

tht1  remaining  properties,  nor  should  the  owners  of  the  Decrease  of 
burned  or  demolished  properties  p;iy  taxes  on  the  old  detraction 
registered  value  of  their  properties.  The  values  of  the  °f  i>r"- 

of  such  properties  will  be  rightly  assessed  by  the 
Commission  tit  the  head-quarter  of  the  province,  and 
the  tax  on  such  value  only  will  be  collected.  It  will 
then  be  submitted  to  His  Imperial  Majesty  to  remit 
the  decreased  tax  pending  its  being  covered  by  the 
erection  of  new  buildings. 

6.  The  building  tax  shall  be  managed  by  this  Com-  Building 
mission.  When  a  new  building  is  to  be  erected  in  the 
head-quarter  city  of  the  province,  information  should 
|be  given  at  first  to  this  Commission,  who  will  register  it 
in  the  building  book,  receive  the  tax,  and  give  the 
permit.  The  completion  of  the  building  should  be 
reported  to  the  Commission,  who  will  assess  its  value 
and  impose  the  Yerghi  accordingly.  Should  any  build- 
ing be  erected  without  the  information  of  the  Com- 
mission, even  though  it  be  built  legally,  the  carpenter 
or  architect  who  built  it  will  be  imprisoned  for  three 
months,  and  the  proprietor  will  be  fined  a  sum  equal  to 
two  years  \7erghi  of  the  building  for  disobedience  to  the  Regulation 
new  rules.  If  the  building  is  built  in  contravention  of  "ntrsm 
the  building  law  it  will  be  demolished  by  the  Govern- 
ment, and  the  architect  will  be  imprisoned  six  months. 
This  rule  will  be  carried  out  exactly  in  the  head- 
quarters of  sub-provinces  and  districts.  The  Kaima- 
kams,  Mudirs  and  Councils  will  see  that  the  law  is 


124  The  Ottoman  Land  Code. 

\ 

Buildings,  respected,  and  will  report  the  occurrences  to  the  Central 

Commission  without  loss  of  time,  as  prescribed  in  Art.  2, 
Chap.  5. 

Appiica-  7.  After  the  registration,  sums  will  be  appropriated 
taxes.  for  municipal  works  and  for  the  taxes  of  widows,  orphans, 
and  poor  people  unable  to  pay  taxes.  When  any  work 
of  public  utility  is  required  the  Commission  will  submit 
the  matter  in  writing  to  the  Council  of  the  province, 
whereupon  the  Grand  Vizier's  authority  shall  be  asked, 
and  if  obtained  the  work  will  accordingly  be  executed 
and  paid  for  out  of  the  appropriation.  The  Treasury 
will  pay  from  the  appropriation  the  taxes  of  such  poor 
people  for  whose  inability  to  pay  a  certificate  shall  haveV 
been  given  by  the  elders,  notables,  and  Mukhtars  of 
their  quarter,  and  whose  poverty  has  been  certified  by 
the  officials  on  reference  to  the  census  register. 

Clerk  and  8.  As  under  the  system  of  collection  of  Yerghi 
described  the  work  of  the  Eevenue  Department  will 
naturally  decrease,  a  competent  clerk  and  a  copyist 
(from  that  department)  will  be  given  to  the  Tax 
Commission.  « 

Transmis-  9-  The  census  books  once  written  up  by  the  registra- 
tion  officials  will  be  delivered  to  the  Inspector  of  Census 
of  the  province.  After  this,  all  occurrences  will  be 
recorded  at  the  Commission  by  the  registrar  of 
occurrences,  according  to  the  established  rule. 


Registration  of  Census  and  Properties.    125 

10.  No  addition  under  the  name  of  expenses  or  under  Tax  not  to 

be  unlaw- 

any  other  name  will  be  made  on  the  tax  allotted  to  the  fully  in- 
people1. 

11.  The  registration  officials  will  supervise  the  execu-  Duty  of 
tion  of  this  till  the  end  of  the  work.  officers 


126  The  Ottoman  Land  Code. 


CHAPTEE  IV. 

Village  !•  Each  six  villages  will  form  a  division,  and  each 

divisions.     yiiiage  wji]_  elect  a  member  in  the  manner  to  be  stated 

in  the  election  law,  of  whom  one  will  be  the  president 

and  five  will  be  members. 


Duties  of  2.  They  will  meet  in  summer  once  a  week,  and  in 
ah-isfonal  c°ld  countries  once  in  two  weeks,  on  a  fixed  day  at  one 
officers.  Of  foe  six  villages  in  turn:  will  apportion  the  trade 
tax,  if  there  are  any  tradesmen  in  their  villages,  accord- 
ing to  the  condition  of  each  tradesman  every  year.  It 
is  obvious  that  information  will  be  received  (at  the 
head-quarter  of  the  district)  of  any  transfers  and  sales 
of  properties  and  new  buildings,  which  will  not  be 
erected  unless  permission  is  given  by  the  District 
Council,  but  should  any  buildings  be  built  without 
permission  they  will  inform  the  Council  of  the  district 
of  such  buildings,  and  of  those  which  have  been  ruined 
or  burned,  and  will  report  all  births  and  deaths,  and  all 
changes  of  residence. 


CHAPTEE  Y. 

DEALING  WITH    OCCURRENCES   AT   THE   HEAD-QUARTER 
OF   THE   DISTRICT. 

] .  The  census  registrar  will  record  in  the  new  form  Occur- 
hanclbook  in   his   hands  any   matters  concerning  the 
census  which  are  found  in  the  handbook  of  occurrences  with- 
received  from  the  village  divisions.     Once   in   three 
months   he   will   prepare   a   schedule    of    the    census 

f  occurrences  on  the  printed  form,  showing  the  general 
numbers  of  each  name  in  a  particular  column.  This 
schedule  will  be  certified  by  the  Council  of  the  district 
and  forwarded  to  the  Council  of  the  sub-province  to  be 
handed  to  the  census  clerk.  The  occurrences  referring 
to  properties  will  be  caused  to  be  recorded  in  the  book 
kept  by  the  clerk  of  the  Council :  then  the  changes  in  change 
the  condition  of  the  properties  and  their  sale  and 
transfer  will  be  entered  with  the  general  number  on  a  Pert7 

,  special  schedule,  which  will  be  sent  once  a  year  to  the 
Council  of  the  sub-province  to  be  given  to  the  Ernlak 
clerk  there.  The  occurrences  of  the  trade  tax  will  also 
be  recorded  by  the  district  clerk  in  the  handbook,  and 
a  summary  list  without  names  showing  the  increase  or 
decrease  of  the  trade  tax  will  be  sent  once  a  year  to  the 

^revenue  officer  of  the  sub-province. 


occur- 
rences. 


128  The  Ottoman  Land  Code. 


DEALING   WITH   OCCURRENCES    AT    THE    HEAD-QUARTER 
OF   THE    SUB-PROVINCE. 

Record  of  2.  From  the  three  kinds  of  statements  of  occurrences 
to  be  reported  to  the  sub-province  at  fixed  times  by 
the  districts,  the  census  clerk  will  record  in  his  hand-- 
book the  occurrences  of  the  census,  and  the  revenue 
officer  will  register  the  occurrences  relating  to  the 
property  and  income  taxes  in  the  respective  handbooks. 
They  will  then  forward  the  statements  to  the  Com- 
mission at  the  head-quarter  of  the  province. 


MANAGEMENT    OF    THE    OCCURRENCES    AT    THE    HEAD    . 
QUARTER  OF   THE  PROVINCE. 

Record  of  3.  The  three  kinds  of  statements  received  from  the 
rences.  sub-provinces  will  be  registered  on  the  day  of  their 
receipt  in  the  special  handbooks  and  entered  in  the 
book  of  occurrences.  The  occurrences  of  the  property 
tax  and  of  census  will  be  entered  name  by  name  in 
their  columns,  but  the  occurrences  of  the  income  tax  will 
not  be  entered  name  by  name,  but  in  one  sum  for  each 
village.  If  on  comparison  with  the  register  the  increase  < 
or  decrease  shown  by  these  three  reports  of  occurrences 
are  found  very  great,  every  search  and  inquiry  should 
be  made  to  find  out  if  loss  has  been  caused  to  the 
Treasury  by  recklessness,  or  if  the  people  have  been 
damaged  in  order  to  increase  the  Government  revenue 
and  to  make  the  amendments.  The  persons  who  have  * 


Registration  of  Census  and  Properties.    129 

been  the  cause  of  these  faults  will  be  tried  and  reported 
to  the  Porte. 

4.  As  the  occurrences  will  increase  or  decrease  the  Record  of 
taxes,   the   amendments   of  taxes   mentioned   in   the  ment  of 
instructions  to  the  managing  committee  will  be  recorded  taxes- 
on  the  Kochans  and  carried  out  accordingly  the  next 

year. 

5.  A  clerk,  named  the  diary  keeper  of  the  Com-  Diary 
mission,  will  be  appointed  for  the  present  to  the  Central 
Commission,  to  keep  the  accounts  of  the  Kochans  and 
forms  to  be  distributed  to  the  provinces,  and  to  see  that 
these  are  not  printed  more  than  necessary  and  wasted. 
Another   clerk,  called   the  comparing    clerk,  will   be  Comparing 
appointed,   whose   duty   it   will   be    to   compare   the 
occurrences  with  the  register  and  to  note  the  correct- 
ness of  the  births  and  deaths,  constructions  and  transfers, 

and  of  the  new  permits,  by  reference  to  the  surnames 
and  to  the  names  of  proprietors  recorded  in  the 
register. 


130  The  Ottoman  Land  Code. 


CHAPTEE  VI. 

MANAGEMENT   OF   KOCHANS. 

Manage-  1.  The  Central  Commission  will  cause  to  be  dis- 
Kochans  tributed,  village  by  village,  through  the  first-class 
registration  officials,  the  lithographed  Kochans  of 
Verghis  and  income  taxes,  and  of  census  prepared 
according  to  the  statement  furnished  by  the  diary- 
keeping  clerk  from  the  register.  The  census  permits 
will  be  given  only  once,  but  for  those  who  are  born  or 
have  transferred  their  residence  since  the  registration, 
the  Commission  will  in  time  cause  to  be  prepared  from 
the  occurrence-reports  census-permits  on  the  printed 
forms,  showing  the  special  and  general  number  of  their 
names  and  other  particular  marks,  and  will  send  them 
to  the  districts.  The  Mudirs  of  the  districts  will  hand 
these  to  the  Mukhtars  to  be  given  to  the  people  to 
whom  they  belong.  In  the  district  of  the  head-quarter ' 
these  will  be  distributed  through  the  Mukhtars. 

Supply  of       2.  Once  every  three  years  in  the  month  of  January 
the  Commission  will  send  to  the  sub-provinces  separate 
bags  for  each  district  containing  the  Yerghi  and  income, 
tax  Kochans  prepared  from  the  register.     When  these 


Registration  of  Census  and  Properties.    131 



reach  the  sub-province  they  will  be  sent  without  delay  Distribu- 
te the  districts.     The  districts  will  hand  these  papers  to  K^,^ 

Xukhtars  of  the  villages  and  quarters,  who  will 
hand  them  to  the  people  one  by  one.  As  stated  in 
the  instruction  to  the  Central  Commission,  each  pay- 
ment by  the  people  will  be  noted  on  the  special  place 
of  the  Kochan,  and  sealed  with  the  receipt  seal  of  the 
treasury  of  the  district  on  the  special  place  or  on  the 
back  of  the  Kochans,  the  Eochans  being  (each  time) 
returned  to  the  Mukhtars  to  be  distributed  to  the 
people.  After  these  Kochans  are  sent  backward  and 
forward  between  the  head  quarters  of  the  district  and 
the  villages  for  three  years  at  fixed  times,  the  fourth 
year  they  will  be  sent  from  the  head  quarter  of  the 
district  to  the  head-quarter  of  the  sub-province  to  be 
checked  ttith  the  counterfoils  kept  at  the  Kevenue  Checking ot 
Office  and  with  the  accounts  received  from  the  district, 
and  returned  at  once  to  remain  as  receipts  in  the 
hands  of  the  people.  New  Kochans  will  then  be 
detached  from  the  counterfoils  and  forwarded  to  be 
managed  for  three  years  at  the  districts,  and  returned 
the  fourth  year  to  the  sub-province  to  be  dealt  with  in 
'  the  manner  described,  and  so  on  continuously. 

3.  The  carrying  out  of  the  sale  or  transfer  of  any  Taxes  must 
kind  of  property  and  land  by  the  Courts  and  Evkaf  before 
officers  will  absolutely  depend  on  whether  the  taxes  transfer- 
%  thereof  have  been  paid.     The  Cadis  and  officials  \\ill 
not  be  able  to  effect  any  sale  or  transfer  unless  they 

K  2 


132  The  Ottoman  Land  Code. 

Taxes  to  be  see  on  the  Kochan  that  the  taxes  have  been  paid,  and 

convey6- °1G  they  will  note  on  the  title-deeds  which  they  writr  the 

general  numbers  marked  on  the  Verghi  Kochans  and 

the  numbers  and   folios   of  the   books  in  which  the 

properties  are  registered. 


PREPAKATION   AND  MANAGEMENT   OF   THE   RECORD 
BOOKS. 

Record  1.  As  the  registers  will  be  large  and  made  only  once, 

w°here'  they  will  be  prepared  and  bound  at  the  Imperial 
Printing  Department.  All  kinds  of  Kochans  and 
occurrence  handbooks  and  all  forms  relating  to  the 
registration  will  be  printed  at  the  lithographic  press  of 
the  Commission. 

Books  to  be  2.  The  clerks  having  the  best  hand  will  write  up 
the  registers  at  the  Commission.  Care  should  be 
taken  that  they  be  perfectly  correct.  No  erasure 
should  be  made,  but  any  mistakes  should  be  crossed 
by  a  thin  line  so  as  to  allow  the  original  writing  to  be 
read.  Great  care  should  also  be  taken  of  the  correct- 
ness and  cleanness  of  the  handbooks  to  be  kept  at  the 
sub-provinces  and  districts.  A  correct  and  clean  copy 
of  the  register  in  good  writing  should  be  made  and 
sent  to  the  Chief  Defteri  Khakani  office  (at 
Constantinople). 


(     133     ) 


CHAPTEK  VII. 

MANAGEMENT    AND   PRESERVATION   OF    THE    NUMBER 
PLATES    TO    BE    FIXED   TO    BUILDINGS. 

1.  The    numbers   of    the   buildings   \vill    be    fixed  Numbers 

on  build- 
according    to    the    maps    which    will    be     given    to  ings. 

the  officials,  and  care  will  be  taken  always  for  their 
preservation.  If  the  number  plate  of  a  building 
f  is  lost  or  broken  at  the  villages,  the  village  division 
commission ;  at  the  head-quarter  village  of  the 
district,  the  Mudir ;  at  the  head-quarter  town  of  the 
sub-province,  the  Kaimakam  ;  and  at  the  head-quarter 
city  of  the  province,  the  Mudir  of  the  city  employed 
by  the  Commission,  shall  ask  the  proprietor  to  fix 
a  new  one,  and  if  he  does  not  do  it  they  shall  report 
him  to  the  Government  and  have  him  compelled  to 
do  so. 

'  CONCLUSION. 

1.  The  occurrences  of  properties  and  lands  and  of  Transmis- 
census   are    always    recorded    in    the  Chief    Defteri  records. 
Khakani  office  and  the  Jeride  Muhasebe  office.     The 
latter  being  transferred  to  the  Chief  Defteri  Khakani 
••  office,  the  reports  of  these  two  kinds  of  occurrences 


134  The  Ottoman  Land  Code. 

Transmis-   should  at  fixed  times  be  sent  to   the   Chief  Defter!  ** 
records.      Ehakani  office  by  all  the  managing  commissions  h; 
the  Empire. 

inspectors       2.  It  being  most  essential  that  this  registration  be 

of  records. 

carried  out  strictly  in  accordance  with  the  rules  and 
regulations,  two  inspectors  will  be  appointed  from  the 
officials  who  have  been  in  the  work  from  the  com- 
mencement :  one  for  Turkey  in  Europe,  and  one,  for 
the  present,  for  Turkey  in  Asia,  to  make  inspections 
till  the  completion  of  the  registration. 

Punish-  3.  Should  any  official  act  contrary  to  the  rules  laid 

ment  of  ,      , 

officials.  down  in  this  and  the  previous  drafts,  or  be  lax  in 
performing  his  duties  in  due  time,  he  shall  be  tried 
and  reported  here  by  a  Mazbata  by  the  Council  of 
the  province. 

14.  Jemaziul  evel,  1277. 


(     135     ) 


VI.  SUPPLEMENT  TO  TAPU  LAW, 
127;). 


Actions  about  mortgage  (Fe'ragh  bil  vefa)  of  Arazi 
Mirie  and  Arazi  Vakfie  of  the  Takhsisat  category,  in  deed. 
which  the  mortgage  is  not  bound  by  deed,  will  not  be 
heard.     (See  Note  35  of  Notes  to  2.) 

26.  Safer,  1278. 


136  The  Ottoman  Land  Code. 


VII.  LAW  DECIDED  ON  BY  IMPERIAL 
IRADE  CONCERNING  THE  SALE  OF 
LAND  OF  CERTAIN  DEBTORS  FOR 
THE  PAYMENT  OF  DEBT. 


Certain  In  accordance  with  the  old  law  only  the  house  which 

debtor* not  ig  lowest  in  value  of  a  debtor  shall  be  left,  the  sale  of 
to  be  sold,   j^  other  property  having  been  decided  on.    A  quantity 
sufficient  to  manage  that  house  of   his  Arazi  Mine 
will  be  left,  the  remainder  shall  be  sold  by  auction. 
If,  after  these  have  been  separated,  the  value  of  the 
things   sold'  is   not   sufficient   to   pay  the    debt,   the 
remaining  sum  shall  be  collected  from  his  sureties. 
Sale  of  Debts   on   account   of  farmed  revenues  which   the 

property,  farmers  have  transferred  to  others  will  be  treated  in 
exactly  the  same  way  as  debts  to  Government ;  in 
accordance  with  the  law  it  is  necessary  that  the  pay- 
ment of  the  debt  should  be  made  by  the  sale  of  all  the 
debtor's  property  and  effects,  with  the  exception  of  one 
house.  But,  in  accordance  with  the  Imperial  Land 
Law,  Arazi  Mine  cannot  be  sold  for  debt.  In  the 
event  of  its  being  decided  that  the  debtor's  land  can-  < 


Sale  of  Land  for  Debt.  137 

i 

not  be  sold,  Government  claims  are  exempt  from  this  Exemption 

,        of  Govern- 

decision.     This  exemption  is  applicable  to  sums  due  ment 
directto  the  Government  Treasury ;  it  is  not  applicable  c 
to  sums  due  to  persons  or  to  farmers  of  revenue. 

Eebi  ul  evel,  1279. 

The  provisions  of  this  law  contrary  to  the  laws  for 
the  sale  of  immovable  property  for  debt,  and  Arazi 
Mirie  and  Mevkufe,  and  Musakafat  and  Musteghillat 
Vakfie,  satisfying  debt  after  the  death  of  the  debtor 
are  abrogated. 


138  The  Ottoman  Land  Code. 


VIII.  REGULATIONS  CONCERNING 
TABULATED  CERTIFICATES. 


Preiimi-         In  order  to  facilitate  the  procedure  of  alienation, 

nary. 

inheritance,  and  other  matters  of  all  Musakafat  and 
Musteghillat  Mevkufe  in  the  provinces  in  accordance 
with  the  compact  system  now  adopted,  as  it  is 
necessary  that  henceforth  printed  tabulated  certificates 
should  be  cut  out  of  the  printed  counterfoil  registers,' 
sent  everywhere  and  issued  as  shown  in  the  Instruc- 
tions, these  Kegulations  contain  certain  matters  deri- 
vative from  this. 

Tenure  of        1.  Henceforth   Musakafat   and    Musteghillat    Mev- 

lands11       kufe  shall  not  be  possessed  by  any  person  in  any  way 

without  a  title-deed  from  the  Yakf.     By  this  means 

persons  who  have  no  title-deeds,  and  those  who  have 

title-deeds  from  places  other  than  the  Yakf,  will  be, 

Necessity    obliged  to  get  new  title-deeds.      The  necessary  pre- 

deeds         cautions  in  this  respect  will  be  carried  out  by  all  the 

officials. 


2.  The  columns  of  the  tabulated  forms  of  certificate 
will  be  filled  up  in  the  manner  shown  in  the  printed* 


7\\  ;;r;/  /.  r  tions  Concern  ing  Ccrfifici  r  tes  for.     139 
instructions  when  a  nrrson  takes  a  title-deed  in  any  Certificate: 

1  how 

way  for  Musakafat  and  Musteghillat,  with  the  excep-  tilled  up. 
tion  o*f  those  leased  by  Muajele,  a  register  will  be 
prepared  in  accordance  with  the  register  of  which  a 
specimen  has  been  sent  of  the  number  collected  daring 
one  month,  and  together  with  the  necessary  fees,  &c., 
will  be  sent  to  the  Imperial  Evkaf  Treasury.  If  they 
are  detained  more  than  one  month  in  their  locality 
the  Evkaf  Mudir  will  be  responsible. 

3.  Though  the  auction  price  or  equivalent  value  of  Separate 
Musakafat    and    land     leased    by    Muajele    will    be re 
delivered   to   the    Treasury   in    accordance   with   the 

\  system,  and  the  totals  will  be  included  in  the  register 
sent  to  the  Treasury  once  every  three  months  as 
stated  in  Art.  45  of  the  new  law,  in  order  to  guard 
against  causing  interruption  to  the  Treasury,  besides 
the  said  register,  an  individual  register  (Mufredat 
Defter)  will  be  prepared  and  filled  in  in  the  method  of 
the  tabulated  forms  of  certificate  stated  in  the  fore- 
going articles,  and  sent  together  to  the  Imperial  Evkaf 
Treasury. 

4.  The  following  fees  will  be  taken  : —  Duties. 
5%  on  the  gross  value  of  titheable  places,  and  on 

the  value  of  the  land  only  of  places  paying  fixed 
rent  (Mukata)  when  alienated  and  inherited. 

2J%  on  the  mortgage  (Istiglal)  and  cancellation  of 
*     the  mortgage  (Istiglal)  of  the  said  places. 


140  The  Ottoman  Land  Code. 

3%  on  the  alienation  of  places  held  in  ijaretein. 

1J%  on  the  inheritance,  mortgage  (Istiglal),  and 
cancellation  of  the  mortgage  (Istiglal)  of  the  said 
places. 


Double  5.  As  a  restrictive  measure,  double  the  fees  will  be 

certain       taken  if  a  possessor  of  Musakafat  and  Musteghillat  by 

inheritance  does  not  have  the    inheritance  procedure 

carried  out  at  the  time  of  settlement,  and  subsequently 

or  at  the  time  of  sale  has  it  carried  out. 


New  title-  Q  According  to  the  new  system,  the  writing  of 
marginal  notes  on  title-deeds  having  henceforth  been 
abandoned,  new  title-deeds  will  be  issued  in  every  f 
case.  Three  piastres'  cost  of  paper  and  one  piastre 
clerk's  fee  will  be  taken  for  every  title-deed.  Nothing 
else  will  be  levied. 

Disposal  of      7>  if  it  is  ascertained  that  the  land  of  a  person  who 

land  when 

no  heirs,  dies  without  heirs  and  which  has  become  the  right  of 
Tapu  has  been  taken  and  concealed,  as  stated  in  Art. 
71  of  the  Imperial  Land  Law,  if  the  person  who  has 
taken  it  is  an  owner  of  the  right  to  Tapu  it  will  be« 
conferred  on  him  for  the  Tapu  value  at  the  time 
when  its  concealment  is  ascertained  ;  if  he  abstains,  or 
if  the  person  who  has  taken  it  is  not  an  owner  of  the 
right  to  Tapu,  the  said  land  will  be  conferred  on  the 
candidate  at  auction.  If  within  one  year  from  the 
date  of  the  arrival  at  their  destination  of  the  counter- 


Regulations  Concerning  Certificates  for.     141 


f 

foil    registers   in   accordance   with   this   new   system,  Grant  of 

without  having  a  valid  disability,  such  as  minority,  JJJ^* 
insanity,  imbecility,  or  absence  from  the  country,  the 
owner  of  the  right  to  Tapu  does  not  apply  to  the 
Evkaf  Mudir  for  a  certificate  in  order  to  obtain  a  new 
title-deed  for  this  kind  of  concealed  land,  and 
subsequently  appears,  the  Tapu  value  will  not  be 
sought ;  the  land  will  be  offered  to  him  once  for  the 
price  fixed  at  auction,  if  he  is  a  candidate  it  will  be 
given  to  him,  if  not,  a  deed  showing  that  he  withdraws 
will  be  taken  from  him,  and  the  land  will  be  given  to 
another  candidate.  It  will  be  the  duty  of  Evkaf 
Mudirs  to  make  the  matter  known  in  a  proper  manner 

*  beforehand  for  the  information  of  everybody. 

8.  On  payment  of  only  three  piastres'  cost  of  paper  Grant  of 
and   one   piastre   clerk's   fee,   Boz   and   Kiraj    places  J^® 
which  are  far  from  the  most  distant  habitation  may  be 
granted   gratis,   in   order    that   they   may   be   newly 
opened  up  into  arable  land,  but  arable  land  which  has 
become  vacant  (Khali)  without  owner  is  exempt  from 
this  rule,  it  will  be  granted  to  the  candidate  at  auction. 
,  The  newly  opening-up  and  making  into  arable-  land 
of  the  said  Boz  and  Kiraj  places  depends  on  permission  Leave  to 
being  obtained  from  the  official ;  as  stated  in  Art.  103  of 
the  Imperial  Land  Law,  the  Tapu  value  at  the  time  of 
seizure  and  cultivation  will  be  taken  from  the  owners 
of  places  which  have  been  opened  up  and  made  into 

*  arable  land  without  the  permission  of  the  official  after 


142  The  Ottoman  Land  Code. 

\ 

Occupation  the  date  of  publication  of  the  said  law,  and  the  land 

hinds8*  w^  ke  granted  to  them.  This  decision  is  also  as 
stated  in  the  preceding  article.  If  without  excuse  the 
owner  does  not  come  within  one  year  and  ask  for  a 
title-deed  on  paying  the  Tapu  value,  as  stated,  it  will 
be  conferred  on  him  for  the  present  Tapu  value. 

Definition  9.  The  Tapu  value  taken  for  land  conferred  on  an 
vaiuePU  owner  of  the  right  to  Tapu  does  not  mean  the  amount 
ascertained  at  auction  or  as  stated  by  a  person  from 
outside,  but  the  real  value  of  the  land  according  to 
equals  on  the  information  of  unbiassed  possessors  of 
knowledge.  It  being  contrary  to  law  to  put  up  to 
auction  Arazi  Mahlul  to  which  there  is  a  right  to  Tapu,  * 
and  the  Tapu  value  that  will  be  taken  being  the 
lawful  right  of  the  Vakf,  if  the  possessor  of  knowledge 
has  received  money,  or  in  any  other  way  founded  on 
bias  states  more  or  less  than  the  real  value,  he  will 
be  punished  in  accordance  with  the  Imperial  Penal 
Code  (1).  The  Evkaf  Mudir  and  Civil  officials  will 
be  held  severally  responsible  in  this  respect  also. 
Exactly  the  same  care  will  also  be  bestowed  on 
matters  of  estimating  the  value,  in  order  to  take* 
fees  of  alienation  and  inheritance. 


Grant  of  10.  As  there  will  be  no  right  to  Tapu  in  Musakafat 
an(^  landed  property  held  in  Ijaretein,  those  of  these 
which  become  entirely  Mahlul  will  be  leased  to  the 
candidate  at  auction  according  to  the  former  system. 


Regulations  Concerning  Certificates  for.     143 
r- 

When  a  small  or  large  share  of  a  not  entirely  Mahlul  Auction  of 
khan,  bath,  shop,  garden  and  such  like  thing  of  the  pr0perty. 
landed  property  category  becomes  Mahlul  it  will  be 
sold   to   the  candidate   at   auction.      But   houses  are 
exempt  from  this  law  ;  if  a  share  becomes  vacant  it  will 
not  be  sold  by  auction,  but  leased  to  a  shareholder  on 
the  valuation  of  a  competent  person  (2). 

11.  On  payment  of  alienation  fees  new  title-deeds  issue  of 
will   be   issued    to   persons   who,  in   accordance  with  ^^ 
Art.   78  of  the  Land  Law,  prove  their   prescriptive 
right  (Hak  Karar),  that  is  to  say,  to  persons  who  by 
inheritance,  alienation  from  another,  or  relying  on  one 

'of  the  means  of  acquiring  possession  from  those  who 
are  authorised  to  grant  land,  have  gained  the  right  by 
undisturbed  possession  for  ten  years  and  have  no  title- 
deed,  and  also  to  persons  who  have  no  title-deed  for 
Yakf  land  on  taking  a  Mulk  Hujet  for  the  vines, 
buildings  and  trees  of  places  of  which  the  land  is 
Yakf,  and  the  vines,  trees  and  buildings  Mulk.  But 
this  also  is  on  condition  that  it  shall  be  carried  out 
within  one  year,  as  stated  above.  If  there  are  any  Penalty  on 

•persons  who  without  excuse  do  not  take  out  title-deeds  ggf  new  ° 
within  that  time,  double  the  fees  will  be  subsequently  tltle'deeds- 
taken  from  them. 


12.  New  title-deeds  will  be  issued  for  the  Musakafat 
and  Musteghillat  of  persons  who  have  valid  old  title- 
deeds  sealed  with  the  seal  of  the  Muteveli  of  the 


144  The  Ottoman  Land  Code. 

. /; 

Issue  of      Vakf,  and  who  wish  to  exchange  them,  on  payment  of 

deeds  of      only  three  piastres'  cost  of  paper  and  one  piastre  clerk's 

an^Muste-  ^ee*     But  papers  without  seal  or  sealed  with  an  un- 

ghiiiat.      known  seal  will  not  be  looked  upon  as  authentic  ;  this 

kind  of  land  will  be  treated  as  held  without  title-deed. 

New  title-deeds  will   be   issued  on   payment   of  the 

customary  fees,  cost  of  paper,  and  clerk's  fee,  if  the 

prescriptive  right  (Hak  Karar)  is  established;  if  not, 

the  concealed  land  procedure  will  be  carried  out.  , 

New  title-  13.  Persons  who  prove  by  the  registers  that  they 
loss  of  old.  have  lost  their  title-deeds  must  take  out  title-deeds 
within  one  year.  Title-deeds  will  be  issued  to 
persons  who  do  not  take  out  title-deeds  during  * 
this  period  on  payment  of  the  customary  fees. 
Only  three  piastres'  cost  of  paper  and  one  piastre 
clerk's  fee  will  be  taken  from  persons  who  wish  to  take 
out  title-deeds  during  the  said  time,  and  if  there  are 
any  persons  who  wish  to  exchange  their  old  trustworthy 
title-deeds,  only  three  piastres'  cost  of  paper  and  one 
piastre  clerk's  fee  will  be  taken  from  them  also,  and 
the  tabulated  forms  will  be  filled  up  and  sent  to  the 
Imperial  Evkaf  Treasury.  This  course  will  depend* 
entirely  on  the  owners  themselves  showing  a  desire. 

Sale  of  14.  When   only   a   known   share   of   land   held   in 

share  la*    partnership  is  going  to  be  alienated  to  another  it  will 

laud.          be  offered  to  the  partner,  and  if  he  refuses  to  take  it  a 

deed  will  be  taken  from  him  and  the  matter  will  be 


Regulations  Concerning  Certificates  for.     145 

noted    in    the    alienation    column    of    the    tabulated  Di\-: 
certificate.     When  land  held  in  partnership  is  «r<u'n^  to  JhT^iami. 
be  separated  and  divided,  as  stated  in  Art.  15  of  the 
Imperial  Land  Law,  it  will  be  divided  in  an  equitable 
manner.      A   note    will    be    made    in   the   alienation 
column  of  the  said   tabulated  form  that  it  has  been 
divided  in   accordance   with  the   law,  and   the   title- 
deeds  in  their  possession  will  be  changed. 

15.  If  a  portion  of  a  place  held  by  one  or  several  Certificate 
title-deeds  has  been  separated  and  alienated  to  another  ance^ 
in  accordance  with  the  rule  that  will  be  carried  out  in 

other  alienations,  a  certificate  will  be  issued  to  the 
•  alienee,  and  its  other  procedure  will  be  carried  out. 
As  the  boundaries  and  amount  stated  in  the  old  title-  New  title- 
deeds  in  the  possession  of  the  owner  will  be  changed 
on  account  of  such  separation  of  a  piece,  the  title-deeds 
will  be  changed. 

16.  When  persons  to  whom  certificates  cut  out  of  Sale  before 
the  counterfoil  registers  in  accordance  with  the  system  n^utie- 
now  adopted  have  been  issued  are  going  to  alienate  to  deeds- 

^  another  the  places  before  the  arrival  of  the  title-deeds 
from  the  Imperial  Evkaf  Treasury,  after  the  alienation 
fees  have  been  taken  in  accordance  with  the  rule,, 
another  certificate  will  be  issued  to  the  alienee,  and  in 
accordance  with  the  system  the  certificate  in  the  hands 
of  the  alienor  will  be  attached  to  the  duplicate  of  the 
*new  certificate  issued  to  the  alienee  and  sent  to  the 

L 


146  The  Ottoman  Land  Code. 

Imperial  Evkaf  Treasury.  In  the  column  for  "  Cause 
of  Issue  of  Title-Deed  "  in  this  new  tabulated  certificate 
will  be  written  u  as  the  title-deed  has  not  ye't  been 
received  from  the  Imperial  Evkaf  Treasury,  the  old 
certificate  is  sent  herewith  attached."  If  the  title- 
deed  in  accordance  with  the  old  tabulated  certificate 
has  been  prepared  and  sent  to  its  destination  before 
the  arrival  of  the  new  tabulated  certificate  at  the 
Delivery  of  Imperial  Evkaf  Treasury,  it  will  be  kept  at  its  desti- 

new  title-  ./'. 

deed.  nation,  and  when  the  title-deed  prepared  in  accordance 
with  the  new  tabulated  certificate  arrives  at  its  desti- 
nation it  will  be  delivered  to  the  alienee,  and  the 

Disposal  of  detained  title-deed  will  be  attached  to  the  certificate 
taken  from  him  and  returned  to  the  Imperial  Evkaf'( 
Treasury.     Exactly  the  same  procedure  will  be  carried 
out  concerning  persons  who  possess  temporary  certifi- 
cates and  who  die  before  the  arrival  of  the  title-deeds. 


CONCLUSION  (3). 

If  any  doubts  arise  in  the  execution  of  the  new 
Rystern,  explanation  must  be  asked  for  from  the 
Imperial  Evkaf  Treasury. 

25.  Ramazan,  1281. 
9.  February,  1280. 


(     147     ) 


IX.    INSTRUCTIONS  (1). 


It  being  one  of  the  requirements  of  the  Imperial  Uniform 
Decree  that  the  legal  procedure  of  Arazi  Mevkufe 
should  be  assimilated  to  the  Imperial  Land  Law  (2) 
in  force  up  to  the  present  published  in  the  begin- 
ning of  Zilhije,  1274  (3),  and  it  being  necessary 
that  the  duties  and  other  proceedings  of  the  Arazi 
Mevkufe  officials  should  also  as  far  as  possible  be 
•  in  accordance  with  the  Arazi  Mirie  system,  it  is 
necessary  that  the  title-deeds  issued  henceforth  in 
accordance  with  the  Provincial  Title-Deeds  Law 
now  drawn  up  should  be  put  under  a  symmetrical 
organisation  and  law.  Printed  tabulated  certificates 
having  now  been  prepared  to  take  the  place  of  the 
temporary  certificates  issued  by  Evkaf  Mudirs  until 
the  arrival  of  the  title-deeds  issued  to  owners  of 
Musakafat  and  Musteghillat  from  the  Imperial  Evkaf 
•Treasury,  it  is  not  necessary  to  change  the  temporary 
certificates  issued  locally  up  to  the  piesent  and  fur 
which  the  fees  and  cost  have  been  taken  for  these 
printed  certificates;  but,  as  it  is  decided  that  these 
printed  certificates  should  be  given  for  title-deeds 
issued  hereafter,  these  Instructions  have  been  prepared 
in  order  to  explain  the  procedure  which  should  be 

L  2 


148  The  Ottoman  Land  Code. 

carried  out  concerning  the  said  printed  tabulated  forms 
of  certificate. 

Forms  of  1.  The  said  tabulated  forms  of  certificate  are  in  the 
form  of  bound  registers.  Commencing  with  1,  different 
numbers  have  been  put  in  these  registers  for  each 
place  where  there  is  an  Evkaf  Muclir.  Each  register 
contains  two  hundred  forms  of  certificates,  and  each 
form  of  certificate  is  in  triplicate.  The  certificates  in 
each  register  will  be  used  commencing  from  the  left, 
the  first  will  be  numbered  1  and  so  on  up  to  200. 
In  order  to  explain  how  they  are  to  be  used  ten  speci- 
mens of  certificate  and  one  specimen  of  the  register 
with  Mazbata  at  foot  to  be  sent  to  the  Treasury  have 
been  sent  to  each  place  where  there  is  an  Evkaf  Mudir. 

Certifi-  2.  In  the  event  of  alienation  and  inheritance,  and 

filled  up.  on  issue  of  title-deed  to  those  who  have  none,  and  on 
exchange  of  old  title-deeds  in  fine,  as  shown  in  the 
specimens,  the  name  of  the  Sanjak  will  be  written  by 
the  side  of  the  word  "  Liva  "  in  all  three  copies  of  the 
certificate ;  the  name  of  the  Kaza  in  which  the  place  is 
situate  will  be  written  in  line  with  the  word  "Kaza/'  if 
the  place  is  attached  to  a  town,  as  in  specimens  1,  3,  4, 
5,  7,  9  and  10  ;  the  name  by  which  the  place  is  known 
will  be  written  by  the  side  of  the  word  "town  "  thus — 
"place  in  the  neighbourhood  or  within  the  town,"  if  it 
•  is  in  the  boundaries  of  a  village,  as  shown  in  specimens 
2,  6  and  8 ;  the  name  of  the  village  will  be  written  by 
the  side  of  the  word  "  village."  In  the  column  in  whicii 


Instructions  Rcg.v-di.  for.     149 

• 

are  written  the  numbers  of  the  volume  and  registration  Certiti- 
of  the  o^l  title-deed,  to  the  left  of  this  column,  as  shown  ho* 
in  the   spec-mien^,   if  tlr-re    is  a  title-<L-e<l   issued    in  hl 

lance  with  the  new  law,  the  numbers  of  the 
volume  and  registration  put  on  the  said  title-deed  will 
be  put  in  tlrese  columns.  In  the  line  of  the  word 
"  superintendence  "  the  words  "  Mazbut  from  Hare- 
mein,"  as  shown  in  specimens  2,  7  and  8,  will  be 
written  if  the  Vakf  is  under  Haremein  superintendence 
and  Mazbut ;  and  the  words  "  Mulhak  to  Haremein,"  as 
shown  in  specimen  1,  will  be  written  if  it  is  Mulhak ; 
and  the  words  "  Mnzbut  from  Imperial  Evkaf,"  as  in 
specimens  3,  4  and  6,  will  be  written  if  the  Vakf  is 
kinder  Imperial  Evkaf  superintendence  and  Mazbuta ; 
and  the  words  "  Mulhak  to  Imperial  Evkaf,"  as  shown 
in  specimens  5,  9  and  10,  will  be  written  if  it  is  Mulhak. 
In  the  line  of  the  word  "  beuefice,"  if  the  benefice  of 
the  Vakf  is  known,  its  nature  and  the  quarter  in  which 
it  is  situate  will  be  written,  as  shown  in  specimens  2,  3, 
5,  6,  9  and  10.  By  the  side  of  the  word  "  Vakf"  the 
name  and  title  of  the  Vakf  will  be  written,  as  shown  in 
all  the  specimens.  In  the  line  of  the  word  "  bound- 
aries/' and  in  the  columns  of  the  word  "side,"  the 
present  true  boundaries  will  be  written,  as  shown  in  all 
the  specimens.  If  it  is  land  for  which  the  expression 
"  occupying  seed "  is  used,  as  in  specimen  2,  the 
amount  of  seed  which  the  land  receives  will  be  written 
^n  the  seed  column  by  the  side  of  the  word  "seed." 
If  the  expression  donum  is  used,  as  shown  in  specimens 


150  The  Ottoman  Land  Code. 

i 

Certifi-  5,  6,  8  and  9,  the  number  of  donums  of  land  will  be 
tfbJ  filled  written  by  the  side  of  the  word  "  donum."  Jf  it  is 
UP-  Musakafat  and  the  number  of  ziras  of  the  site  is 
known,  the  number  of  ziras  will  be  written  as  shown  in 
specimens  1,  7  and  10.  If  it  is  Musakafat  and  the 
number  of  ziras  is  not  known,  or  if  it  is  a  Gedik, 
it  will  be  left  open,  as  shown  in  specimens  3  and 
4.  If  it  is  mixed  with  another  Vakf,  as  shown  in 
specimens  1  and  2,  the  words  "  mixed  with—  —Vakf," 
or  "mixed  with  another  Vakf,"  will  be  written  in  the 
small  column  to  the  left  of  this  column,  separated  by  a 
line.  All  the  contents  will  be  written  by  the  side  of 
the  word  "  contents,"  as  in  specimens  1,3,  4,  7  and  10.  f 
Then  the  column  for  the  nature  of  the  place  will  }> 
filled  up  thus  : — If  it  is  a  titheable  place,  arable  land, 
or  meadow  will  be  written  by  the  side  of  the  word 
"titheable,"  as  shown  in, specimens  2,  5  and  8.  If  it 
is  a  place  paying  a  fixed  equivalent  of  tithe,  such  as 
meadow,  vineyard,  Chiftlik,  wood,  forest,  mill,  threshing- 
floor,  uncovered  or  covered  sheepfold,  &c.,  the  word 
vineyard,  or  garden,  or  whatever  it  is,  will  be  written 
in  the  line  of  the  word  "  fixed,"  as  shown  in  specimens 
6  and  9.  If  the  said  kinds  of  lands  and  places  are" 
attached  to  a  Chiftlik,  in  order  to  know  their  subjec- 
tion to  such  Chiftlik,  in  the  certificate  for  each  title- 
deed  "  Subject  to Chiftlik  "  will  be  written  in  the 

small  column  to  the  left,  as  in  specimens  2  and  6. 
After  the  words  "  Chiftlik  site  "  have  been  written  by  , 
the  side  of  the  word  Mukata  if  it  is  Mukata,  and  by 


Instructions  Regarding   Certificates  for.      151 

the  side  of  the  word  Ijare  if  it  is  Ijare,  in  the  certifi-  Certifi- 
cate  i^sm'd  lor  the  site  of  the  Chiftlik  building,  the  to  be  filled 
name  and  title  of  the  Chiftlik  will  be  written  in  the  said  up- 
small  column.  The  annual  ijare  of  properties  held 
in  ijaivteiu  (4)  will  be  written  in  the  line  after  the 
words  "  house  or  shop,"  as  shown  in  specimens  1,  3,  4 
and  10.  For  such  places  as  garden,  bath  and  khan, 
the  words  garden,  bath  and  khan  will  be  written 
instead  of  house  and  shop.  Then  the  column  for 
"  reason  of  issue  of  title-deed  "  will  be  filled  up  thus  : — • 
If  there  is  an  old  title-deed,  the  words  "  in  exchange  " 
will  be  written,  as  in  specimens  1,  3,  4  and  6.  If  the 
title-deed  has  been  lost,  the  words  "  on  account  of  loss  " 
*  will  be  written,  as  in  specimens  2,  5  and  7.  If  the 
date  of  the  lost  title-deed  is  known,  it  will  be  noted  in 
the  line  of  the  sentence  "  on  account  of  loss,"  as  in 
specimen  7.  As  there  is  much  waste  (Khali)  land 
belonging  to  the  Evkaf,  which  is  from  time  to  time 
leased  by  auction  to  the  candidate,  the  facts  will  be 
recited  in  the  column  for  "reason  of  issue  of  title- 
deed,"  as  in  specimen  8,  and  the  word  "  new  "  will  be 
written.  As  some  owners  of  houses  and  lands  will  lose 
'their  title-deeds  and  apply  to  the  Vakf  for  new  ones, 
the  facts  will  be  stated  as  shown  in  specimen  9,  and 
the  words  "  on  account  of  loss  "  will  be  written.  The 
facts  relating  to  title-deeds  exchanged  will  be  stated 
in  the  column  for  " reason  of  issue  of  title-deed"  in 
the  certificate,  as  shown  in  specimen  10,  and  the  words 
"  in  exchange  "  will  be  written. 


152  The  Ottoman  Land  Code. 

Certifi-  3.  When  the  alienation  of  land,  houses,  &c.,  is  being 

to  be  filled  carried  out:  Firstly,  the  columns  stated  in  Art.r2  will 

be  filled  up.     Secondly,  as  shown  in  specimen  1,  the 

name  and  address  of  the  alienor  and  his  father,  and 

definite  alienation,  will  be  written  by  the  side  of  the 

Considera-  word  "  alienation,"  and  the  real  price  for  which  the 

stated.        place  has  been  sold  will  be  written  in  the  column  for 

price  of  alienation,  as  in  specimen  1.     If  a  property  is 

going  to  be  mortgaged  (Istiglal),  or  is  going  to  be 

freed  from   mortgage   (Istiglal),  after   the   procedure 

as  before  stated  in  Art.  2  has  been  entirely  carried 

out,  if  it   is   going   to   be   mortgaged   (Istiglal)    "on 

account   of  mortgage   (Vefaen  Feragh)   to ,  son 

of ,"  will  be  written  in  the  line  as  in  specimen  3.  JP 

If  it  is  going  to  be  released  from  mortgage  "  cancel- 
lation of  mortgage  (Feragh)   to  ,  son   of ," 

will  be  written  by  the  side  of  the  alienation  column, 
as   in   specimen   4.     As   in   both  specimens  3  and  4 
the  amount  of  the  price  received  will  be  written  in 
the  line  for  "  equivalent  of  alienation ;  "  the  "  equiva- 
lent   received"   if  it   is   a   mortgage    (Istiglal),   and 
"  the  price  received  "  if  it  is  a  cancellation.      When 
Facts  as  to  the  inheritance  of  a  property  is  going  to  be   carried  " 
must  be11'6  out>  after  the  Procedure   stated   in   Art.  2   has   been 
stated.       carried    out,    if    the    property    has    been    inherited 
from    the  father,  "on    account   of   the   death   of  the 

father,  -    — ,  son  of  • ,"  will  be  written,  as  shown 

in  specimen  2.     The  same  will  be  written  if  it  is  in-  ( 
herited  from  the  mother,  or  if,  being  land,  it  is  inherited 


Instructions  Regarding  Certificates  for.      153 

from  the  sun  or  daughter.    The  date  of  the  death  of  the 

deceased  will  also  be  noted.     The  estimated  value  will 

• 

vritten  by  the  side  of  the  words  "  estimated  value." 

4.  After  the  procedure   stated  in  Art.  2  has   been  Certifi- 
carried  out  with  regard  to  certificates  issued  to  owners  to  be  filled 
of  the  right  to  Tapu  (5),  the  name  of  the  deceased,  j 
the  date  of  decease,  and  the  relationship  of  the  owner  ited- 
of  the  right  to  Tapu  will  be  written  by  the  side  of  the 
printed  sentence  "  right  to  Tapu,"  as  shown  in  speci- 
men 5,  and  the   Tapu  value  estimated  by  unbiassed 
possessors  of  knowledge  will  be  written  in  the  column 
for  equivalent  value. 

*  5.  In  cases  of  pure  Mahlul  property  conferred  b 
auction,  as  shown  in  specimens  6  and  7,  the  manner  in  property  to 
which  the  property  became  Mahlul,  that  is  to  say,  if 
there  is  no  owner  of  the  right  to  Tapu,  or,  if  there  is 
one  and  he  abstains,  will  be  written  by  the  side  of  the 
sentence  "  Pure  Mahlul,"  and  the  price  fixed  at  auction 
will  be  written  in  the  column  for  auction  price.  If  it 
is  waste  (Khali)  land  of  a  Yak^  and  it  is  leased  by 
auction  to  the  candidate,  as  in  specimen  8,  the  price 

1  fixed  will  be  put  in  the  column  for  auction  price. 

6.  The   name,   address,   profession,  and   name   and  Description 

/  of  ancestor 

address  of  the  father  of  the  possessor  of  every  kind  of  to  be 
Musakafat   and  Musteghillat,  will   be  written  in   the  gl 
column  for  name  of  possessor. 

7.  The  fees  taken,  as  stated  in  detail  in  the  Instruc- 


154  The  Ottoman  Land  Code. 

\ 

Fees:  tions  (6),  will  be  written  in  the  fee  column,  as  shown  in 
taktn*0  be  specimens  1,  2,  3  and  4,  and  the  rate  per  mille  at  which 
they  have  been  calculated  will  be  noted  in  the  place 
entitled  "  Per  Mille  "  to  the  left  of  the  said  column. 
The  three  piastres  taken  for  each  title-deed  will  be 
entered  in  the  column  printed  "  Cost  of  paper."  The 
one  piastre  taken  for  each  will  be  written  in  the 
column  for  "  Clerk's  Fee."  If  there  is  any  uncollected 
Ijare,  or  Mukata,  it  will  be  taken  on  account  at  the 
time  of  alienation  and  inheritance,  and  will  be  written 
in  the  Ijare  column  if  it  is  Ijare,  and  in  the  Mukata 
column  if  it  is  Mukata.  In  cases  of  Malilul  only  the 
cost  of  paper  and  clerk's  fee  will  be  entered.  The 
total  will  be  added  up  according  to  the  system  of 
calculation  shown  in  the  specimens,  and  entered  in  the 
column  for  "  Total.'7  Under  the  words  "  Eegistration 
Number  in  the  Receipts  Register,"  to  the  left  of  the 
total  column,  the  number  of  the  register  sent  to  the 
Treasury  with  these  tabulated  forms  will  be  written. 

Foot  of          8.  After  the  procedure  stated  above  has  been  entirely 
certifi-        carried  out,  and  the  three  copies  of  each  certificate  have 

cate:  how 

to  be  filled  been  filled  up  in  the  manner  explained,  as  shown  in 
the  specimens,  in  the  first  of  the  empty  spaces  among 
the  lines  at  the  foot  of  the  tabulated  form  of  certificate 
to  the  right,  the  nature  of  the  property,  and  if  it  is  in 
partnership,  as  in  specimen  3,  the  number  of  shares 
will  be  shown.  In  the  second  the  name  of  the  future 
holder,  and  of  his  father,  will  be  written.  In  the  table 


Instructions  Regarding  Certificates  for.      155 

to  the  left  of  the  foot  of  the  tabulated  forms  of  certifi-  Foot  °f 

certifi- 
cate that  will  be  sent  away  and   that  \\ill  remain  ascate:  how 

i  i  -11  .to  be  filled 

counterfoils,  the  details  of  the  sums  that  will  remain  -m. 
in  the  locality  will  be  entered.  Thus,  in  the  Treasury 
share  of  the  fees  of  alienation,  inheritance,  mortgage 
(Istiglal),  and  cancellation  of  mortgage  (Istiglal),  that 
is  to  say,  one-fifth  of  half  the  fees,  will  be  separated  and 
entered  in  the  column  for  "  Mudir's  fifth,"  in  the  small 
table  in  which  is  written  "  fifth  detained  locally  for 
Mudir  and  others  "  in  the  second  table  of  each  specimen. 
In  accordance  with  the  ancient  system,  the  shares  of 
Mutevelis  with  Berats,  Clerks,  and  Jabis,  will  be  de- 
livered to  them,  and,  as  shown  in  the  specimens,  each 
one  will  be  entered  in  its  proper  column.  If  it  is 
necessary  that  the  Ijares  and  Mukatas  taken  at  the 
time  of  alienation,  inheritance  and  mortgage  (Istiglal) 
should  be  detained  and  delivered  locally,  they  will  be 
detained  and  entered  in  the  columns  for  Ijare  and 
Mukata.  The  total  will  be  added  up  in  an  arithmetical 
system  and  entered  in  the  column  for  total.  The  places 
for  date  will  be  filled  up,  and  the  Mudirs  will  seal 
under  the  places  printed  "  Mudir  of  Evkaf."  If  it  is  a 
Mulhaka  Yakf,  and  the  Muteveli  is  in  the  locality,  the 
Muteveli  of  the  Vakf  will  seal  under  the  places  printed  Seal  of 
"  Muteveli  of  Vakf."  A  note  will  be  made  if  the 
Muteveli  is  not  in  the  locality.  In  cases  of  Mahlul, 
the  shares  of  the  servants  detained  locally  will  be 
shown  in  the  registers  sent  away ;  no  note  will  be 
made  in  the  tabulated  forms  of  certificate. 


156  The  Ottoman  Land  Code. 

Separation       9.  After  all  the  registration  procedure  stated  above 

tificates!  "  nas  been  carried  out,  the  tabulated  form  of  certificate 

will  be  cut  at  the  place  to  the  right,  that  is  to  say, 

where  "  to  the  Imperial  Evkaf  Ministry  "  is  written  at 

the  top,  as  shown  in  the  specimens,  and   given  to  the 

future   owner.     Then  the    second   tabulated   form   of 

certificate  will  be  cut  and  attached  to  the  old   title- 

deed  of  the  property,  if  there  is  one  ;  if  not,  it  will  be 

kept   by  itself.     Except  in  cases  of  Mahlul,  all  the 

tabulated   forms   of  certificate  collected   during    one 

month,  and  the  old  title-deeds  attached  to  them,  will 

Transmis-    be  sent,  together  with  the  Receipts  Register  with  Maz- 

tabukted    bata  a^  ^°°^>  direct  to  the  Treasury.     As  one  copy  of 


forms.  fkjg  Recejpts  Register  to  be  sent  has  been  sent  as  a 
specimen,  it  will  be  prepared  as  shown  in  this  speci- 
men. The  certificates  of  Mahluls  will  be  sent  once 
every  three  months,  together  with  the  Detailed  (Muf- 
redat)  Register. 

Third  part      10.  Tw/o  tabulated  forms  of  each  certificate  will  be 

of  the  cer-  ,      .       ,.  .    ,       .,,  . 

tificate  to  cut  out  m  the  manner  stated,  the  third  will  remain  in 
kept'  the  stump  of  counterfoils,  and  be  kept  locally  for  the 
accounts  to  be  seen  in  case  of  necessity,  and  to  be 
referred  to.  The  predecessors  of  the  Mudirs  of  Evkaf 
will  make  a  complete  handing  over  to  their  successors. 
If  one  counterfoil  is  missing  at  the  time  of  handing 
over,  it  will  not  be  accepted,  but  reported  to  the 
Imperial  Treasury.  If  it  is  accepted  without  informing 
the  Treasury,  the  responsibility  will  lie  with  the  person 


Instructions  Regarding  Certificates  for.      1 5  7 

who  accepts.     They  will  also  completely  deliver  the 
specimens,   instructions,   descriptive  instructions,   and 
of  the*  register. 

25.  Eamazan,  1281. 
9.  February,  1280. 


158  The  Ottoman  Land  Code. 


X.  COPY  OF  IMPERIAL  KHAT  (1)  (2). 


"LET   BE   DONE   ACCORDINGLY. 

With  the  intention  of  facilitating  the  procedure,  and 
commerce  and  agriculture,  and  in  that  way  the  rich- 
ness and  prosperity  of  the  country,  the  following 
Imperial  permissions  which  have  been  decided  on 
concerning  the  mode  of  inheritance  of  Mirie  and 
Mevkufe  land  possessed  by  Tapu  are  made  known. 

Rules  of          1.  The  provisions  of  the  Imperial  Land  Law  con- 
to  MM?108  cerning  the  inheritance  in  equal  shares  by  the  children, 


ma*e  an(*  *emale>  °f  ^irie  and  Mevkufe  (3)  land  pos- 
sessed by  Tapu,  remain  as  they  were,  onlyjf  the  male 
and  female  children  of  possessors  of  Mirie  and  Mevkuf6 
land  are  not  living,  the  land  possessed  by  them  shall  • 
be  inherited  equally  without  cost  by,  2,  the  grand- 
children, that  is  to  say,  the  son  and  daughter  of  the 
male  and  female  children  ;  3,  by  the  father  and  mother ; 
4,  by  the  brother  german  and  consanguineous ;  5,  by 
the  sister  german  and  consanguineous ;  6,  by  the 
brother  uterine  ;  7,  by  the  sister  uterine,  and  if  there 


Copy  of  Imperial  KJut.  159 

are  none  of  the  heirs  enumerated  it  shall  descend,  8, 
from  husband  to  wife,  and  from  wife  to  husband  (4). 

12.  While  an  heir  of  the  first  degree  of  the  possessors  Rules  of 
of  the  right  to  inheritance  of  the  degrees  mentioned  tance. 
above  is  living,  an  heir  of  the  second  degree  shall  not 
have  a  right  to  inheritance ;  for  instance,  the  land  shall 
not  be  inherited  by  the  grandchildren  when  there  is  a 
child,  or   by  the  brothers  and   sisters   german  when 
there  are  grandchildren  existing ;  but  children  of  the 
male  and  female  children  who  die  during  the  lifetime 
of  their  father  and  mother,  shall  take  the  place  of  the 
children :  the  share  that  would  be  inherited  by  their 

•i 

father  and  mother  from  their  grandfather  and  grand- 
mother will  be  inherited  by  them,  but  of  the  land 
that  will  be  inherited  by  heirs  being  possessors  of  the 
right  to  inheritance  from  the  parents  to  the  sister 
uterine,  a  share  of  one-fourth  each  shall  be  inherited 
by  the  husband  and  wife. 

3.  The  system  of  mortgage  (Feragh  bil  Yefa)  (5)  Mortgage. 
which  is  in  force  for  securing  a  debt,  and  the  conditions 
and  procedure  that  will  make  the  land  of  a  debtor, 
'  which  has  not  been  mortgaged  (Yefaen  Feragh) 
chargeable  as  to  the  debt  during  his  lifetime,  or,  on 
his  death,  will  be  fixed  by  special  laws. 

NOTE.— The  system  of  Mortgage  (Feragh  Ul  Vefci)  is  stated  in 
Art.  26  of  the  Tapu  Law.     And  the  procedure  to  be  carried  out  in 
the  lifetime  and  on  the  death  of  the  debtor  is  stated  in   the  Law 
*  No.  16. 


160  The  Ottoman  Land  Code. 

* 
Procedure       4.  The  Mine  and  Mevkufe  land  procedure  will  be 

Chiftiiks.  completely  carried  out  with  regard  to  Chiftliks  and 
other  land  which  are  possessed  by  Imperial  Title 
Deeds  (Mulkname  (6)  Humayan),  but  the  annual  rent 
(Muejele)  which  is  taken  from  these  in  accordance 
with  the  special  rules  shall  be  taken  as  before. 

Buildings  5.  The  provisions  of  the  Imperial  Land  Law  con- 
cerning the  possession  of  buildings  and  trees  on  Mirie 
and  Mevkufe  land  shall  be  carried  out  as  before  (7). 

Operation       6.  This   law  shall  be   in   force    from   the   date   of 
promulgation,  and  the  Imperial  Land  and  Tapu  Laws 
being  corrected  in  accordance  with  the  legal  provisions  t 
which  are  stated   in   the   foregoing   articles,  shall  be 
published  and  notified  (8). 

17.  Muharem,  1284. 


XL  FISCAL  REGULATIONS  RELATIVE 
TO  THE  APPLICATION  OF  THE 
PRECEDING  LAW  (1). 


The  right  of  succession  to  lands  Mirie  and  Mev-  increase  of 
kufe  belonging  to  the  domains  of  the  State  (Beit-ul- 
,'  Mai)  was  limited  until  now  to  the  children  and  the 
father  and  mother  of  the  proprietor.  With  the  inten- 
tion of  strengthening  the  right  of  possession  of  these 
lands  in  the  hands  of  the  holders  of  them,  the  limit  of 
the  right  of  inheritance  of  these  lands  has  been  enlarged 
by  virtue  of  the  new  law  promulgated  by  Imperial 
decree  dated  this  day. 

In  consequence  of  the  advantages  which  the  owners 
of  these  lands  will  gain  by  this  concession,  and  as  a 
.compensation  for  the  loss  caused  to  the  Treasury  by 
the  suppression  of  the  right  of  Mahlul,  finally,  in 
return  for  the  new  right  granted  to  the  owners  of 
lands,  it  has  been  decided  that  the  State  will  levy  the 
equivalent  of  a  tithe  and  a  half  (15  per  100)  from  the 
annual  produce  of  the  land.  But,  as  the  levying  all  at 
once  and  the  payment  in  cash  might  fall  heavy  on  the 

M 


1 62  The  Ottoman  Land  Code. 

increased    landholders,  the  amount  of  this  tax  shall  be   spread 
payable,      over  five  years,  payable  in  kind  from  the  annual  pro- 
duce, or  in  money,  at  the  will  of  the   owner   of  the 
land.     This  spreading  over  five  years  will  be  made  in 
the  following  manner  :— 

The  first  year  (1283)  the  payment  will  be  one-third 
of  the  tithe  and  a  half,  that  is,  the  half  of  the  tithe 
levied  until  now  on  the  produce  of  lands  Mirie  and 
Mevkufe ;  for  example,  the  landholder  who  pays  now 
one  kiio  as  tithe,  will  pay  besides  this  kilo  half  a 
kilo. 

The  second   year  (1284)  the  payment  will  be   the 
quarter  of  the   tithe,  that  is,  the   landholder  who   at 
present  pays  a  kilo  as  tithe,  will  pay  over  and  abo\ 
this  kilo  a  quarter  of  a  kilo. 

The  third  (1285),  the  fourth  (1286),  and  fifth  year 
(1287),  the  payment  will  be  a  fourth  as  for  the  second 
year ;  at  the  expiration  of  the  fifth  year  the  landholder 
will  have  to  pay  only  the  normal  tithe. 

New  tax         The  tithe  and  a  half  to  be  levied,  as  it  is  said  above, 
Midland    *n  re^urn  ^or  ^ne  new  rign^?  will  be  leviable  only  from 
Mevkufe.    |jie  OWners   of  lands   Mine   and   Mevkufe ;    whatever 
may  be  the  produce  of  the  cultivated  land,  the  levyingc 
the  tithe  and  a  half  will  be  at  the  charge  of  the  land- 
holder, even  in  case  the  land  should  be  let. 

This  taxation  is  confined  to  lands  Mirie  and 
Mevkufe  held  by  Tapu ;  it  will  not  be  leviable  on  the 
produce  of  olive  trees,  mulberry  trees,  vines,  and  other 
fruit-bearing  trees. 


Fiscal  Regulations.  163 

• 

A  tax  of  !,">  per  1(M)  will  be  levied,  in  live   payments  Like  t 


spread  over  live   \ears.  and  under   the  same  conditions  "0"       ' 


and  proportions  as  for  cultivated  lands,  on  the  produce 
and  receipts  from  non-cnltivated  lands,  such  as  lands 
for  wintering  (Kishlak)  and  pasture  (Yaylak)  held  by 
Tapu. 

Lands  held  by  Mulkname  (Imperial  decree)  will  be  The 
t  rated    in  the  same  manner   as   other   Mirie   lands  ;  namVlan. 
but  other  arrangements  will  be  made  concerning  the 
annual  payments  which  weigh  on  the  lands  included 
in  the  category  of  the  Emlaki   Humayun  (2)  (Koyal-Other 

T»  L    \  lands. 

Property). 

17.  afnbarem,  1284. 
21.  May,  1867. 


NOTE. — This  transitory  law  h'ts  ceased  to  be  in  force  on  account 
of  the  expiration  of  the  term  on  the  one  hand,  and  on  the  other,  on 
account  of  an  Imperial  Decree  which  the  Government  has  commu- 
nicated in  the  newspapers. 


M   2 


1 64  The  Ottoman  Land  Code. 


XII.  COPY  OF  IMPERIAL  KHAT. 


"LET    BE    DONE    ACCORDINGLY." 

Lauds  Subject  to  the  conditions  which  relate  to  conforming 

called  Mus-      .,,        ,         ..,  .  .  , 

akafat  and  with  the  illustrious  pious  foundations  remaining  per- 
ghiffat  manent,  and  not  causing  any  injury  to  the  origin  and  ; 
conduct  of  the  Musteghillat  VakfM,  and  the  conditions 
of  the  Vakf  being  completely  carried  out  as  before, 
the  Imperial  permissions  which  have  been  decided  on 
concerning  the  system  of  inheritance  of  Musakafat  (1) 
and  Musteghillat  (2)  the  possession  and  administra- 
tion of  which  belong  to  His  Imperial  Majesty,  the 
Great  Sultans  and  their  Dependents  and  Mutevelis 
being  extinct,  and  the  administration  remaining  with 
the  Imperial  Evkaf  Treasury,  and  which  are  possessed c 
by  Ijaretein  (3)  are  made  known  as  follows : — 

Rules  of         1.  Musakafat   and    Musteghillat   Vakfs   which  are 

ance.          possessed   in   Ijaretein   shall   as   before    be   inherited 

equally  by  the  male  and  female  children ;  if  there  are 

no  existing  male  and  female   children,  they  shall  be 


Inharitancc  of  Musakafat  &  Mustcgkillat.  165 

inherited  in  equal  shares  by  2,  the  grandchildren,  Rules  of 
that  is.  to  say  the  children  of  the  male  and  female 
children;  3,  by  the  parents;  4,  by  the  brother  and 
sister  german ;  -~,  by  the  brother  and  sister  con- 
sanguineous ;  6,  by  the  brother  and  sister  uterine ;  7, 
from  husband  to  wife  and  from  wife  to  husband  (4). 

2.  While  there  is  an  heir  living  who  is  a  possessor 
of  the  right  to  inheritance  of  the  first  degree  men- 
tioned above,  an  heir  of  the  second  degree  shall  not 
have  the  right  to  inheritance  ;  for  instance,  while  there 
are  children  the  grandchildren,  and  while  there  are 
grandchildren  the  parents,  do  not  inherit  Musakafat 
and  Musteghillat  Vakf,  but  the  children  of  the  male 
and  female  children  who  die  during  the  lifetime  of 
their  father  and  mother  take  the  place  of  children,  and 
the  share  that  would  be  inherited  by  their  father  and 
mother  from  their  grandfather  and  grandmother  will 
be   inherited   by   them ;    but   of  the   Musakafat   and 
Musteghillat  that  would  be  inherited  by  an  heir  being 
one  of  the  possessors  of  the  right  to  inheritance  from 
the  parents  to  the  brother  and  sister  uterine  a  share 

'of  one-quarter  each  shall  be  inherited  by  the  husband 
and  wife.  While  there  are  children  and  grandchildren, 
the  husband  and  wife  shall  have  no  right  to  take  a 
share  in  Musakafat  and  Musteghillat. 

3.  As  compensation  for  the  losses  from  Mahluls  which 
the  Evkaf  will  suffer  on  account  of  the  extension  of 


1 66  The  Ottoman  Land  Code. 

, 

Increase  of  inheritance,  the  Ijare  Muejele  of  Musakafat  and 
Musteghillat  w.ll  be  increased  in  a  rational  proportion 
according  to  its  value,  and  this  proportion  will  be  fixed 
by  special  instruction  (5). 

4.  Fees  of  thirty  per  cent,  on  the  alienation  and 
fifteen  per  cent,  on  the  inheritance  by  children  of 
Musakafat  and  Musteghillat  Mevkufe  will  be  taken  as 
before  established,  but  the  amount  of  inheritance  fees 
to  be  taken  in  accordance  with  their  degree  on  the  in- 
heritance by  heirs  who  are  possessors  of  the  right  to 
inheritance  of  the  degrees  mentioned  above,  other  than 
male  and  female  children,  will  be  fixed  by  a  special  . 
law  (6). 

Mortgage.  5.  The  system  of  mortgage  (Feragh  bil  Yefa)  which 
is  in  force  for  securing  debt  will  be  in  force  as  before, 
and  the  conditions  and  procedure  which  detail  this 
system  will  be  fixed  by  special  laws  (7). 

Law  not  6-  The  possessors  of  the  said  Musakafat  and  Muste- 
gfifofc  are  not  obliged  to  conform  to  this  law.  Those 
who  desire  to  conform  to  its  provisions  can  renew  the 
titles  for  Musakafat  and  Musteghillat  Mevkufe  which 
they  possess  in  Ijaietein,  in  accordance  with  the  form 
and  system  which  will  be  fixed. 

7.  This  Imperial   permission  is   only  applicable  toy 
Mazbuta  Yakfs  which  are  administered   through  the 


Inheritance  of  Musakafat  and  Musteghillat.    1 6 7 

liuin  of  tlu»   Imperial   Evkaf   Ministry,  and  to  tli 
illustrious  Vakl's  of  Sultans  and  their  1  >.-{)«-ii<lc],t-,  the  chai 

•i  and  administration  of  which  belong  to  His  ° 
Iinj)erial  Majesty  by  trusteeship.  It  is  not  applicable 
to  other  Vakl's.  But  the  founders  of  other  Vakfs  who 
are  alive,  and  who  can  if  they  choose  alter  the  condi- 
tions of  their  Vakfies,  will  be  permitted  to  act 
according  to  this  legal  decree. 

8.  The  procedure  concerning  Musakafat  and  Mnste-  Applica- 
ghillat  of  which  the  building  site  is  Mukata  (8)  Vakf 

and  the  building  Mulk,  shall  be  carried  out  in  accor- 
dance  with  its  ancient  system.  On  the  purchase,  sale, 
1  alienation,  and  inheritance  of  this  kind  of  Musakafat 
and  Musteghillat  the  ancient  3Iukata  will  be  aug- 
mented to  a  proper  degree. 

9.  This  law  comes  into  force  from  the  date  of  its  Operation 

,          .  of  law. 

promulgation. 

NOTE. —  This  law  bears  r,o  d ite  in  the  Destur,  but  in  the  Legisla- 
tion f'ttomane  it  bears  date  7.  Safer,  1284,  see  also  Arts.  3  and  5  of 
Ko.  16. 


1 68  The  Ottoman  Land  Code. 


XIII.   ACQUISITION  OF  PROPERTY  BY 
FOREIGNERS  (1). 


In  order  to  extend  the  riches  and  prosperity  of  the 
Imperial  Dominions,  and  to  set  aside  the  difficulties, 
abuses,  and  all  kinds  of  doubts  which  arise  from  foreign 
subjects  becoming  possessors  of  property,  and  to  put 
this  important  matter  under  a  firm  law  and  to  com- 
plete the  financial  and  administrative  security,  the  law 
which  has  been  decided  on  by  Imperial  Irade  is  made 
known  as  follows  : — 


Extension  1.  The  subjects  of  foreign  Governments  are  allowed 
aliens.  to  take  advantage  of  the  rights  to  possess  property 
within  or  without  towns  in  every  part  of  the  Imperial  « 
Dominions,  with  the  exception  of  the  Hejaz,  in  the 
same  way  as  Ottoman  subjects,  and  without  being 
under  any  other  conditions,  in  the  manner  stated 
below,  on  complying  with  the  laws  that  govern  them 
in  this  case.  Those  who  were  originally  Ottoman 
subjects  and  afterwards  changed  their  nationality  are 


Acquisition  of  Property  by  Foreigners.      169 

excepted    from    this    rule.       Concerning    them    the 
provisions  of  the  sp-riul  law  will  be  in  force. 

:  K. —  The  procedure  to  be  followed  with  regard  to  property 
(Emhilc)  ami  im,d  (Jnr:/)  lJ"u<tnxj  to  persons  excephd  from  this 
in  (i  La  a- -improved  by  Imperial  Trade,  dated 
LT).  I  /,/>,  1300. 


2.  Foreigners  who  are  owners  of  property  within  Legal  posi- 

.  .    .  tion  of 

or  without  towns  in  accordance  \vith  the  provisions  of  aliens  as  to 
Art.  1,  will  be  obliged  to  fulfil  the  conditions  which  Pr°Perty- 
Ottoman  subjects  are  obliged  to  in  all  matters  which 
concern  their  property.     In  order  to  give  legal  effect 
to   this  obligation:  1,  he  will  comply  with  the  laws 

1  which  are  at  present  and  may  be  in  the  future  in  force 
concerning  possession,  inheritance,  alienation,  and  mort- 
gage (Istiglal)  of  property,  and  police  and  municipal ; 
2,  he  will  pay  all  taxes  which  Ottoman  subjects 
possessors  of  property  are  or  may  be  assessed  for,  of 
whatever  name  or  form,  within  or  without  cities;  3, 
they  will  have  recourse  to  the  Ottoman  Tribunals  in 
all  matters  concerning  property,  and  in  the  event  of 
an  action  affecting  it,  whether  as  plaintiff  or  defendant 
or  both  sides  foreign  subjects,  which  will  be  tried 
according  to  the  system  to  which  Ottoman  subjects 
possessors  of  property  are  subject,  the  conditions  to 
which  they  are  obliged  to  conform,  and  the  rights 
which  they  have  acquired,  without  the  interference 

.of  the  actual  quality  of  their  nationality  special  to 
their  persons,  and  having  regard  to  the  protection  of 


i  70  The  Ottoman  Land  Code. 

, 

the  exemptions    which   belong   to  their    persons   and 
movable  property  in  accordance  with  treaties. 

Bank-  3.  In  the  event  of  the  bankruptcy  of  a  foreigner 

ruptcy  of 

alien.  possessing  property,  the  syndics  will  apply  to  the 
Ottoman  authorities  and  tribunals  for  the  sale  of  the 
property  possessed  by  the  bankrupt,  which  by  essence 
and  law  is  permitted  to  be  answerable  for  the  debts  of 
the  owner,  and  if  a  foreigner  has  an  action  against  a 
foreigner  who  is  possessor  of  property  for  a  matter 
other  than  property,  and  has  gained  his  action  by  the 
decision  of  his  Chancellerie,  and  the  sale  of  the 
property  which  is  valid  to  pay  the  debt  of  the  foreigner 
who  is  condemned  by  this  judgment  is  necessary,  the  / 
matter  will  likewise  be  referred  to  the  Ottoman 
authorities  and  tribunals,  who  will  first  inquire  whether 
the  property  which  the  creditor  claims  to  have  sold  is 
of  the  class  permitted  by  law  to  be  sold  to  satisfy  debt, 
and  afterwards  carry  out  the  decision. 

Testamen-  4.  A  foreigner  has  the  power  to  bequeath  his  property 
ef7lien.Wei  the  inheritance  and  donation  of  which  by  will  is  per- 
mitted ;  the  Ottoman  laws  concerning  Metruke  will  be 
carried  out  with  regard  to  property  which  has  not  been 
given  or  bequeathed,  or  which  the  provisions  of  the 
Ottoman  Laws  do  not  allow  to  be  giy  n  or  bequeathed. 

Succession        NOTE. — It  lias  been  notified  by   Vezirial  letter,  dated  24.  Julij, 
to  alien's      1291,  that  in  the  event  of  the  death  of  a  foreign  subject  possession 
property.     pr0perfy  (Emlok}  his  property  (Emlalc)  and  land  (Arazi)  will 
inherited  by  his  legal  heirs. 


Acquisition  of  Property  by  Foreigners.    171 
,x 

foreigner   shall    take    advantage   of    the  Operation 

,  .       -,  of  law. 

of  the  provisions  of  this  law  as  soon  as 
a(.-([uiesc('uc'o  has  been  given  by  the  Government  to 
which  he  is  subject  to  the  mode  prepared  which  is 
proposal  by  the  Ottoman  Government  to  be  carried 
out  concerning  acquisition  of  property. 

End  of  Jemazi  ul  evel,  1284. 


172 


The  Ottoman  Land  Code. 


XIV.  INHERITANCE  OF  MUSAKAFAT 
AND  MDSTEGHILLAT. 


Fiscal  pro- 
visions as 
to  Musa- 
kafat and 
Musteg- 
hillat. 


Yearly 
tribute. 


APPENDIX. 

Law  concerning  the  mode  of  execution  of  the  pro- 
visions contained  in  the  law  published  by  Imperial 
Ii-ade*  on  the  17.  Muharem,  1284  (1),  concerning  the 
extension  of  inheritance  of  Musakafat  and  Muste- 
ghillat  found  in  Mazbuta  Vakfs  arid  Yakfs  of  the 
Sultans  and  their  Dependents. 

1.  An  annual  ijare  Muejele  of  forty  paras  per 
thousand  on  the  value  that  will  be  assessed  by 
possessors  of  knowledge  on  the  present  conditions  of 
Musakafat  and  Musteghillat  Mevkufe  of  which  the 
rights  of  inheritance  have  been  extended  will  be  fixed, 
and  the  ancient  ijares  of  these  will  be  abolished. 


Yearly  tax       2.  The  procedure  stated  in  the  last  article  will  also 
Gediks.       be   carried   out   in    G-ediks,   which   are   possessed   in 
ijaretein,  but  the  annual  ijaie  Muejele   will  be  fixed 
after  the  value  of  the  Mulk  on  which  they  are  estab-  ^ 
lished  has  been  deducted  from  their  estimated  value. 


Inheritance  of  Mnsakafat  &  Mustcghillat.    i  73 

3.  The  annual  rent  of  the  Mulk  which  is  taken  from  Mode  of 
the  ownt-rof  the  Gedik  on  Mnsakafat  and  Mnsteirhillat  yeftrij 
which  are  \\ithin  the  Yak  is  iixe.l  by  law,  and  on  which  rent- 
ther  -  dik,  will  be  reckoned  at  forty  times  the 
value,  an  1  an  annual  ijare  Muejele  of  twenty  paras  per 
thousand  will  be  fixed  on  however  many  piastres   it 
amounts  to :  the  amount  of  the  old  rent  shall  never  be 
augmented. 

4.  The  amount  in  excess  of  the  annual  ijare,  that  Disposal  of 
will  be  newly  fixed  will  be  paid  in  the  same  way  as  the 

old  ijare  of  Musakatat  and  Musteghillat,  in  accordance 
with  the  special  rules  for  the  old  ijare  Muejele. 

5.  When  Musakafat  and  Musteghillat,  the  rights  of  Duties  ™ 

i'ii  •     •  succession. 

inhernance  ol  which  have  been  extended,  is  inherited, 
an  inheritance  fee  will  be  taken  ot  fifteen  per  thousand 
as  before  when  by  the  children,  thirty  per  thousand 
when  by  the  grandchildren,  forty  per  thousand  when 
by  the  parents,  and  fifty  per  thousand  when  by  the 
brothers  and  sisters,  german,  consanguineous,  and 
uterine,  and  by  the  husband  and  wife,  and  wh«-n  they 
are  definitely  alienated  as  before,  only  thirty  per  Duty 
thousand,  and  when  they  are  mortga.ed  (Istiglal), 
cancelled,  or  released,  fifteen  per  thousand  fees  will  be  mortgase 
taken. 

6.  On  the    alienation,  mortgage  (Istiglal),  and  in- 
heritance by  the  children  only  of  the  said  Musakafat 

Musteghillat  of  which  the  inheritance  has  been 


174  The  Ottoman  Land  Code. 

Proportion  extended,  quarter  of  the  fees  that  will  be  taken,  as 

s..  to  cierk  before,  belong  to  the  Clerk  and  Jabi  of  the  Vakfs,  and 

anii  Jabl>     the  remainder  to  the  Treasury  for  the  Vakfs.     The 

whole  of  the  fees  that  will  be  taken  on  the  inheritance 

by  heirs  other  than  the  children  shall  be  paid  to  the 

Treasury  and  entered  as  revenue  of  the  Vakfs. 

Duty  of  7.  It  will  be  obligatory  for  an  heir  who  has  the  right 
of  inheritance  to  cause  the  process  of  inheritance  of 
Musakafat  and  Musteghillat  which  will  be  inherited  by 
him  to  be  carried  out  either  by  himself  or  by  agent 
within  six  months  if  it  is  in  Constantinople,  and 
within  one  year  if  it  is  outside. 

I 

Appiica-         8.  When   the   possessors    of  Musakafat   and   Mus- 

law  to  teghillat  which  belong  to  various  and  mixed  Vakfs 
Vakfs  w*s^  ^°  become  subject  to  the  new  law,  the  site  of 
every  Vakf  will  be  measured  and  delimited,  and 
title-deeds  in  accordance  with  the  new  system  will  be 
prepared  for  places  which  are  within  the  Vakfs  fixed 
by  the  law.  Whether  the  Vakfs  of  the  Musakafat  and 
Musteghillat  of  this  kind  of  numerous  and  mixed 
Vakfs  are  all  of  the  kind  described  by  the  law,  or 
whether  some  of  them  are  of  that  kind  and  the  others 
Separate  Meshruta  Vakfs,  separate  ijares  for  each  Vakf  will  be 
fixed  in  accordance  with  whatever  share  of  the  value 
that  will  be  assessed  on  the  present  state  of  the  said 
Musakafat  and  Musteghillat  falls  to  the  share  of  each 
Vakf. 


Inheritance  of  Musakafat  ^r  Mnstcghillat.    175 

I*.    If    one    of     the     p.  of    Musak.ifat     and  I)ivisi"u  "*' 

Musteghiilat  which  is  po><cs>rd  in  partnership  or  un-  *'ui\>  land. 
divided  wishes  to  make  it  subject  to  the  new  law,  and 
the  other  partners  do  not  aeijuiesce,  if  it  is  possible  to 
separate  the  partners  and  divide  this  kind  of  Musakafat 
and  Musteghiilat  the  share  of  the  willing  partner 
will  be  separated,  and  a  title-deed  in  accordance  with  Xew  title- 

deed  for 

the  new  system  will  be  prepared  ;  if  it  is  not  capable  of  severed 
division  in  accordance  with  the  provisions  of  the  law,  a  p' 
ne\v  title-deed  will   be   delivered    for   his   commonly 
known  share. 

10.  It  will  be  sufficient  to  collect  whatever  amount  Amount  of 
,  of  the  ijare  Muejele  falls  to  the  value  that  will  be  re-  £*e  of 

assessed  on  only  the  building  sites  of  the  said  Musaka- 
iat  and  Musteghiilat  which  have  been  burnt  or  des- 
troyed after  the  said  ijare  has  been  fixed  in  accordance 
with  the  rules  stated  above.  The  amount  which  falls 
to  the  share  of  the  burnt  or  destroyed  building  will  be 
deducted. 

11.  If  buildings   are   built   on   sites  on  which  the  fpcrease  of 
buddings  have  been  burnt  or  destroyed,  or  which  were  erection  of 
originally  free  from  buildings,  after  the  ijare  has  been  bl 
fixed  in  accordance  with  the  new  rules  on  the  site,  the 
present  condition  of  these  kinds  will  be  newly  estimated 

and  their  ijares  renewed  and  fixed  at  the  rate  of  forty 
f>aras  per  thousand  piastres  on  their  value,  that  will  be 
fixed  approximately  by  possessors  of  knowledge. 


176  The  Ottoman  Land  Code. 

Valuation  12.  The  amount  of  the  special  ijares  of  Musakafat 
onVe'very  an<^  Musteghillat  of  which  the  ijares  have  been  newly 
five  years.  fixe(j  jn  accordance  with  the  rules  for  the  e*xtension 
of  the  rights  of  inheritance  will  not  be  increased  or 
diminished  on  account  of  the  increase  or  decrease  of 
the  value  of  the  properties  for  five  years  from  the  date 
of  the  preparation  and  delivery  of  the  titles  that  will 
be  given  in  accordance  with  the  new  system,  but  once 
in  every  five  years  the  actual  values  of  the  said 
Musakafat  and  Musteghillat  will  be  examined,  and  the 
ijares  will  be  renewed  and  modified. 

Marginal         13.  Marginal  notes  will  not  be  written  henceforth  on 

notes  on          ,          -IT  -ni          •  •  i  -11 

deeds  for-    the  title  that  will  be  given  in  accordance  with  the  new  t 
en'       system  ;  in  the  event  of  alienation,  inheritance,  separa- 
tion, and  division,  new  title-deeds  will  be  prepared  and 
delivered,  and  the  old  title-deeds  taken  and  kept  in 
abroation. 

2.  Zilkade,  1285. 


(    i: 


XV.    LAVT   CONCERNING    CONDITIONS 

FIXIXG  THE  SECUPJXG  OF  DEIiT 
AFTER  DEATH  BY  ARAZL  MIRIK 
AXD  MEYKUFE.  AXD  MU.SAKAFAT 
AND  MUSTEGHILLAT  YAKFIE  (I). 

PREFACE. 

A?  lias  been  promised  in  Arts,  oof  the  Law  concern-  Eem- 
ing  the  Extension  of  Inheritance  of  Musakafat  and 
Musteghillat  Vakfs,  and  3  of  the  Law  Extending  In- 
heritance to  Arazi,  modifying  the  provisions  of  Art.  Jv 
of  the  Tapu  Law.  the  procedure  that  will  be  followed 
during  the  lifetime  of  the  debtor  for  debt  to  be  paid 
after  his  death  from  the  value  of  the  land  which  he 
Jias  mortgaged  (Yefaen  Feragh)  for  securing  debt, 
or  of  the  3Iusakafat  and  Mnsteghillat  Mevkufe,  of 
which  the  right  to  inheritance  has  been  extended, 
been  fixed  bv  tins  law. 

1.  When  a  possessor  of  Arazi  3Iirie  and  Mevkule  is 
'going  to  mor  "-fcten  Feragh)  the  land  which  Ke 

N 


1 78  The  Ottoman  Land  Code. 

method  of   possesses  by  Tapu  to  his  creditor,  lie  is  obliged  to  act, 
gaging.       firstly,  in  accordance  with  the  conditions  which  are 
contained  in  Art.  26  of  the  Tapu  La\v  (2). 


Mortgage        2.  If  a  person  mortgages  (Vefaen   Feragh)  to  his 
parable       creditor  by  meaus  of  the  authority,  in  return  for  the 
fif  debtor's  debt,  the  Aruzi  Miiie  and  Mevkufe  which  he  possesses 
movables,    and  dies  before  paying  it,  the  said  debt  like  other  debts 
shall  be  paid  from  the  movable  property  of  the  debtor  ; 
if  he  has  no  movable  property  or  his  existing  movable 
property  does  not  cover  his  debts,  whether  the  debtor 
has  an  heir  having  the  right  to  inheritance,  or  there  is 
an  owner  of  the  right  to  Tapu  (3)  or  not,  a  sufficient 
quantity  of  that  laud  to  cover  the  debt  will  be  con- 
ferred by  auction  on  the  candidate  for  its  equivalent 
\alue,  and  the  said  debt  shall  be  paid. 


-          3.  The  provisions  of  Art.  2  shall  be  carried  out  also 
'  in  Musakatat  and  Musteghillat  Mevkufe  of  which  the 
hystem  of  inheritance  has  been  extended  in  accordance 
with  the  law  dated  13.  Sefer,  128-i  (4),  and  the  Ijare 
Muejele  increased  to  the  equivalent  amount  (ejri  misl). 


Mortgagee       4.  If  the  value  of  the  Arazi,  Musakafat  and  Musteg- 

m^rtgaged  hillat  mortgaged  (Vefaen  Feragh)  is  nut  sufficient  to 

land.          pav  tne    debt  of  the  deceased   debtor,    the   creditor 

shall  not  be  able  to  interfere  with  other  Arazi,  Musa- 

kafat and  Musteghillat  in  the  possession  of  the  debtor 


Securing  of  Debt  after  Death.          i  79 
(  — 

which  has  not  been  mortgaged  (Vefaen  Feragh)  for 
the  arrears  of  his  claim  (5). 

5.  This   law   is    an   appendix   to    the   laws    dated  Oper.uu 
17.  Muharem  and  13  Sefer,  1284  (4),  and  will  be  in 
force  from  the  date  of  publication. 

23.  Kamazan,  1286. 


x  2 


i  So  The  Ottoman  Land  Code. 


XVI.  LAW  CONCERNING  THE  MORT- 
GAGE (T.ERHIN)  OF  PROPERTY  (1). 


Method  of  1.  When  a  property  is  going  to  be  mortgaged 
gating.  (Terhin),  first,  a  certificate  sealed  by  the  Mukhtar  and 
Council  of  Elders  of  the  quarter  or  village  stating  that 
the  property  has  no  encumbrance  such  as  being  mort- 
gaged (Terhin)  to  another  place  or  under  sequester,' 
will  be  got  and  shown  to  the  Mejlis  Temyiz  if  at  the 
head  quarters  of  a  Liva,  and  to  the  Mejlis  Daavi  if  in 
a  Kaza,  and  after  the  title-deeds  of  the  property  have 
been  examined  without  delay  by  the  Mejlis,  and  it 
has  been  verified  that  there  is  no  kind  of  encum- 
brance, the  certificate  will  be  kept  and  a  permission 
will  be  given;  the  permission  will  be  shown  to  the 
Mehkeine  Sheri  of  the  Kaza  in  which  the  property  is 
situate,  and  it  will  be  necessary  to  get  a  moitgage' 
(Kehn)  hujet  from  there. 

Register  of  2.  A  register  will  be  kept  by  the  Daavi  and  Temyiz 
Mejlises  for  mortgage  (Terhin)  proceedings,  and 
directly  the  permission  has  been  given  for  a  property 
to  be  mortgaged  (Terhin)  it  will  be  entered  in  that 


Law  Concerning  Mortgage  of  Property.     181 

iter.  The  record  will  be  amcndi-d  on  application 
to  the  said  Mrjlises  at  the  time  when  the  cancellation 
of  tin-  mortgage  (Rehn)  takes  pi . 

3.  No  fees  will  be  taken  by  the  Councils  of  Elders, 
Temyiz  and  Daavi,  when  carrying  out  these  proceed- 
ings. Only  the  fees  for  Hujet  will  be  taken  by  the 
Mehkeme  Sheri.  x 

Date  of  Imperial  Irade — 

21.Eebiulakhir,  1287. 
8.  July,  1286. 


1 82  The  Ottoman  Land  Code. 


XVII.  LAND  LAW,  1274. 


SUPPLEMENTAEY  ARTICLE. 

V 

Grant  of  The  privilege  of  receiving  gratis  five  donums  of 
military.  ^he  ^anc^  to  which  the  right  to  Tapu  is  possessed, 
is  granted  to  officers  of  the  Regular  Army  (Asaker 
Nizamie)  whether  retired  or  not,  and  to  retired  privates 
of  the  same  branch.  Two  and  a  half  donums  each  of 
the  land  of  which  the  right  to  Tapu  falls  to  them,  will 
be  granted  gratis  (Bila  Bedel)  to  all  soldiers  who 
have  passed  the  requisite  number  of  seven  years  as  a 
soldier  and  entered  the  category  of  Redif,  whether 
they  have  actually  served  as  a  Redif  or  not. 

Persons  paying  the   equivalent   to   service  in   the 
Regular  Army  are  not  entitled  to  this  privilege. 

25.  Muharem,  1287. 


XVIII.  INSTRUCTIONS  CONCERNING 
TAPU  AFFAIRS  (1). 


1.  Until  the  land  registration  is  complete  there  will  Land 
be  in  each  Sanjak  one  land  official,  and  two  or,  in  ca*e  of  ol 
necessity,  three  clerks,  and  in  each  Kaza  one  Tapu  clerk. 
As  a  centre  to  all  these  there  will  be  at  the  centre  of 
the  Yilayet  one  official  with  the  title  of  Defter  Khane 
Khakani  Mudir  and  an  assisfant.  Under  the  direction 
of  the  Mudir  there  will  be  an  office  with  seven  clerks, 
one  for  each  Sanjak.  The  Kaza  clerks  will  have  recourse 
to  the  land  official  at  the  capital  of  the  Sanjak,  who 
will  have  recourse  to  the  Tapu  Administration  at  the 
centre  of  the  Yilayet.  All  responsibility  to  the  comp- 
trollership  of  the  Defter  Khane  Khakani  will  rest  with 
this  Administration. 


2.  Though  the  procedure  regarding  land  will  be 
earried  out  in  accordance  with  the  provisions  of  the 
Imperial  Land  Law  published  on  7.  Hamazan,  1271  (:;-), 
and  the  system  and  rules  pertaining  to  the  office 
and  registration  will  be  supervised  and  carried  out  in 
accordance  with  the  provisions  of  the  law  and  instruc- 
tions published  on  the  8.  Jemazi  ul  akhir,  1275  (3),  and 
15.  Shaban,  1276  (4)  (5),  the  explanation  of  some 


184  The  Ottoman  Land  Code. 

Explana-     matters  is  necessary  in  consequence  of  the  new  system 

tion  ot  new 

system.       of  Vilayets. 

Tapu  title-  Land  for  which  Tapu  title-deeds  will  be  issued,  and 
of  which  the  issue  is  necessary,  is  divided  into  different 
classes. 

First  divi-  The  first  is  title-deeds  that  will  be  issued  for  aliena- 
tion and  inheritance  (6),  the  procedure  necessary  con- 
cerning these  *<ds  specifically  contained  in  the  laws, 
instructions,  and  Imperial  Orders  in  this  respect,  the 
provisions  of  which  will  be  carried  out  (7)  (8)  (9). 

Second  The  second  is,  that  according  to  the  provisions  of  the 

law  the  title-deeds  of  persons  who  possess  land  under 
title-deeds  issued  by  Multezims  and  Muhasils  under  the 
old  system  will  be  changed  on  their  accuracy  being  * 
ascertained,  and  new  Tapu  title-deeds  will  be  issued  to 
persons  who  have  no  title-deed,  but  who  have  estab- 
lished their  prescriptive  right  on  account  of  having 
cultivated  the  land  for  ten  years  (10). 

Proof  of         Though  this  will  be  done,  in  some  places  title-deeds 

t?veCright.  are  produced  with  unknown  and  false  seals  purporting 
to  be  those  of  Multezims  and  Muhasils,  and  persons  are 
being  confirmed  in  the  possession  of  land  merely  by 
claiming  that  it  has  been  in  their  possession  for  ten 
years.  As  it  is  stipulated  in  the  law  that,  in  order  to 
prove  the  accuracy  of  these  title-deeds  and  to  establish 
the  prescriptive  right,  a  person  should  cultivate  the 
land  for  ten  years  successively,  care  must  be  taken  to 
inquire  into  this,  as  otherwise  the  prescriptive  right 
will  not  be  acquired  by  a  person  who  has  not  cultivated 


Instructions  Concerning  Tapu  Affairs.    185 

» _ 

the  land,  or  lias  only  cultivated  it  once  or  twice,  even 
though  he  may  have  possessed  it  tor  more  than  ten  years. 

Tlii'  third  are  3I"vat  hind-,  woods,  and  Jilul  Mubah  Third  divi- 
that  are  not    required  by  the  Government,  with  the   ' 
exception  of  those  that  will   be  granted  to  immigrants 
(11),  woods  that  have  be6n  assigned  to  the  inhabitants 
of  a  town  or  village  for  collecting  firewood  (12),  and 
woods  and  forests  that  have  been  granted  to  a  Chiftlik 
owner  or  attached  to  a  Vakf.     The  granting  of  these 
according  to  the  rules  stated  below  is  the  duty  of  the 
land  officials. 

And  as  it  has  been  found  that  difficulties  arise  by  inspection 

,  *    ofbound- 

tne  registration  on  the  simple  statement  of  the  bound-  aries. 
aries  of  land  (as  has  been  tried  in  some  places),  all  the 
lands  of  the  Kazas  in  each  Sanjak  will  be  verified, 
village  by  village,  and,  with  the  exception  of  those 
for  which  Seneds  according  to  system,  rule,  and  reality 
are  shown,  they  will  be  registered,  and  in  whichever  of 
the  three  categories  mentioned  above  they  are  included, 
the  requirements  according  to  the  system  decided  on 
concerning  that  category  will  be  carried  out. 

3.  Notice  will  be  given  to  the  Mejlis  Idare  of  the  Notice  as 
Kaza  (13)  in  which  woods  on  Me  vat  land  which,  as 
stated  in  the  preceding  article,  should  be  sold,  and  land' 
land   not  belonging   to    anybody,     or    in    excess    of 
Meras,    which    should    be    granted,    are    situate.     In 
accordance  with  this  decision,  these  lands,  woods,  and 
forests  will  be  divided  into  several  classes,  and  prices 


1 86  The  Ottoman  Land  Code. 

Disposal  of  according  to  their  estimation,  locality,  and  surround- 
forests  on  i"gs  will  be  fixed,  and  the  matter  will  be  notified  to 
land**  persons  who  have  need  and  are  candidates  for  Ihe  land 
and  woods.  After  the  price,  piece  by  piece,  according 
to  the  number  of  donums,  has  been  fixed  at  auction  in 
the  Kaza  Mejlis,  the  transfer  is  to  be  carried  out.  A 
separate  Bedel  Ushr  at  the  rate  of  ten  or  twenty  paras 
per  annum  pe"£  donum  will  be  fixed  according  to  its 
locality  and  estimation,  and  the  amount  is  to  be  noted 
in  the  title-deed  issued.  Though  permission  is  given, 
Thickets,  and  new  title-deeds  are  issued  for  certain  thickets  which 
cannot  become  forests,  or  are  in  excess  of  requirements, 
to  be  newly  opened  up  into  arable  land,  in  places  where 
forests  are  scarce,  or  are  of  greater  necessity,  in  order  ^ 
that  the  thickets  may  take  the  form  of  a  forest,  per- 
mission will  not  be  given  for  them  to  be  made  into 
arable  land.  But  as  it  has  been  decided  to  confer  for 
a  low  price  these  thickets  as  woods  on  candidates  who 
engage  to  protect  and  allow  them  to  grow,  the  inquiries 
in  this  respect  should  be  carried  out  with  great  care. 
And  as  it  is  also  very  necessary  to  distinguish  which 
of  these  thickets  should  be  protected  by  Government, 
as  will  be  ascertained  by  the  requirements,  size,  and 
importance  of  the  locality,  in  case  of  hesitation  and 
doubt  the  matter  should  be  reported  to,  and  instructions 
sought  from,  head-quarters.  It  is  the  duty  of  the  said 
officials  to  give  attention  to  these  matters  also. 

4.  As  the  Yoklama  one  by  one  of  the  lands  of  the' 


Instructions  Concerning   Tapu  Affairs.    187 


in  each  Kaza,  as  stated  above,  and  the  bring-  Personal 
ing  to  light  of  lands  which  should  be  granted,  sold,  by  Tapu 
and   for*  which   title-deeds   should  be  issued   depends01 
on   the   Ka/a    Tapu    Clerks    personally    visiting    the 
villages  and  making  inquiries,  the  Tapu  Clerks  in  tin* 
Kazas  will  go  to  th^  villages,  whether  the  ivgistiation 
has   been  made   before  or  not,   assemble  the  Ikhtiar 
Mejlis,  in  their  presence  refer  to  eacrf'person's  Tapu 
Sened,  if  possible  compare  the  land  with  the  title-deed  ; 
point  out  the  concealed  and  Mahlul  land  and  those  to 
whom  new  title-deeds  should  be  issued  on  verification 
of  their  possession  in  accordance  with  the  law,  and  if 
there  are  any  lands  or  woods  which  should  be  sold, 
bring  to  light  their  true  extent.     The  adjudication  of  Choice  of 
the  woods,  lands,  &c.,  to  be  sold  by  auction  in  accord-  to  be 'sold' 
ance  with  the  last  article  should   take   place  in  the  by  anction' 
Kaza  Mejlis  Idare,  and  if  big,  that  is  to  say  more  than 
several    hundred    donums   and    their    price   great   in 
accordance  therewith,  in  the  Liva  (14)   Mejlis.      In 
both  cases  the  result  of  the  auction   should  be  con- 
firmed by  a  Mazbata.     The  assessment  of  the  equiva- 
lent value  (Bedel  Misl)  of  land  conferred  on  possessors  of  Valuation, 
the  right  to  Tapu  (15)  should  also  be  made  in  the  Kaza 
or  Liva  Mejlis.    Matters  which  Tapu  Clerks  will  carry 
out  in  the  villages  are  verification  of  simple  inheritance,  Duties  of 
prescriptive  right  (Hak  Karar)  and  renewal  of  old  title-  clerks, 
deeds.     They  will  verify  and  fix  by  the  evidence  and 
information  of  the  Ikhtiar  Mejlis  and  other  possessors  of 
knowledge  in  the  village  the  circumstances,  quantities, 


The  Ottoman  Land  Code. 

_^ 


Duties  of  and  boundaries  of  arable  lands,  meadows,  woods,  &c., 
clerks.  of  which  the  simple  inheritance  or  prescriptive  right 
has  been  legally  proved  by  being  cultivated  by  a 
person  for  more  than  ten  years,  or  of  which  the  re- 
newal of  the  old  titles  is  sought.  They  will  fill  in  the 
tabulated  form  according  to  law ;  notify  to  the  owner 
the  customary  fees,  cost  of  paper,  and  clerk's  fee,  and 
after  having  entered  them  in  a  tabulated  register  kept 
for  each,  on  completion  they  will  read  aloud  to  the 
Ikhtiar  Mejlis  the  boundaries,  extent,  fees,  clerk's  fee, 
&c.,  of  each  person's  land  and  cause  the  end  to  be 
sealed.  They  will  make  a  list  in  the  "  chain  "  system 
showing  the  number  of  piastres  to  be  collected  from 
each  person  for  fees,  clerk's  fee,  and  cost  of  paper,  the  * 
name  of  the  alienee,  and  the  amount  of  money,  and 
leave  it  with  the  Mukhtar  for  collection. 

Tapu  clerk  5.  When  the  Tapu  clerk  has  made  such  a  register  of 
certifi-UP  a  village  and  entered  all  its  lands  and  caused  those 
about  which  a  decision  has  been  given  in  the  village 
to  be  confirmed  by  the  Council  of  the  Elders,  before 
commencing  another  village  he  will  fill  up  the  counter- 
foils of  certificates.  The  bottom  of  these  certificates 
will  first  be  sealed  by  the  Tapu  clerk,  and  according  to 
the  importance  and  necessity  of  the  collection  of  the 
money  of  which  the  collection  through  the  village 
Mukhtar  has  been  decided,  one  of  the  Kaza  collectors 
serving  in  that  division  will  be  sent,  and  as  the  money 
is  collected  and  received  it  will  be  delivered  to  tho 


Instructions  Concerning  Tapu  Affairs.    189 

> 

Treasurer  with  the  certificates.     After  the  examination  Appropria- 
tion of 

and  comparison  has  been   carried  out  there,  and  the  fees. 

i1 

clerk's  fee  belonging  to  the  Tapu  clerk  has  been 
at-  d,  the  balance  will  be  entered  as  revenue  to 
the  Treasury,  upon  which  the  certificates  and  counter- 
foils in  which  this  money  has  been  previously  entered 
will  be  sealed  by  the  Treasurer  and  Kaza  Mudir,  and 
the  certificates  delivered  to  their  owners  through  the 
Mukhtars.  A  Mazbata  showing  the  amount  received 
during  the  month,  together- with  the  counterfoils,  will 
be  sent  every  month  to  the  capital  of  the  Sanjak. 
Equivalent  value  matters  which  cannot  be  decided  in 
the  village  and  woods  and  other  lands  which  should  be 
1  sold  by  auction  if  they  are  of  the  degree  which  can  be 
decided  in  the  Kaza  Mejlis,  villagers  and  candidates 
from  outside  and  other  persons  having  necessity  will  be 
summoned  to  the  capital  of  the  Kaza  at  a  fixed  time  on 
the  Mejlis  carrying  out  the  necessary  proceedings  in 
accordance  with  the  rules.  In  accordance  with  the 
Mazbata  that  will  be  taken,  the  certificates  and 
necessary  proceedings  will  be  carried  out  in  accord- 
ance with  the  system  that  is  stated  above. 

6.  The    Tapu   clerk   will   thus   occupy   himself  in  Report  by 

,,  ,  .         .          .    .        .         ,          .,,  nil.  Tapu  clerk 

personally  making  inquiries  in  the  villages,  filling  Up  ^head- 
certificates  and  counterfoils,  and  examining  land  that  qua 
will  be  conferred  by  auction  and  given  for  its  equiva- 
lent value,  and  at  the  end  of  the  month  he  will  inform 
the  Tapu  official  at  the  capital  of  the  Liva  how  many 


190  The  Ottoman  Land  Code. 

~~~~< 

Report  by  certificates  have  been  issued  every  month  in  a  Kaza, 
lapu  si  -.  kow  rauch  the  fees  and  cost  of  paper  amount  to,  and  the 
month  in  which  they  have  been  brought  to  account 
as  revenue  in  the  cash  book  of  the  Kaza.  In  order 
that  the  Kaza  Tapu  clerks  may  carry  out  all  these 
duties  in  a  proper  manner  and  be  expeditious  and 
dexterous  in  registration,  they  must  employ  the 
necessary  number  of  assistants  and  clerks  until  the 
Assistants,  work  of  registration  is  finished.  These  as.-istants  and 
clerks  will  be  paid  pro  rata,  or  by  the  job,  out  of  the 
forty  paras  which  belong  to  the  Tapu  clerks. 

Duties  of        7.  Though    the   fundamental   duties   of   the   Land 
cfpilaUf*   officials  at  the  capital  of  the  Sanjaks  are- 
Sanjak.  rfo  pay  attention  to  the  constant  movements  and 

proceedings  of  the  Kaza  land  clerks  and  to  compare 
the  registration  work  with  the  law,  and  to  bring 
about  its  execution  expeditiously  ; 

To  search  for  the  Mahlul  and  concealed  land  and 
to  bring  it  to  light,  and  to  see  personally,  if 
necessary,  the  Arazi  Me  vat,  forests  and  woods  to  be 
sold  anew,  to  put  them  to  auction,  and  to  search  for 
their  real  value ; 

In  the  event  of  mistakes  being  made  by  the  Kaza 
Tapu  clerks,  or  if  any  of  them  appear  unfit,  to  report 
at  once  to  the  Mejlis  Idaie  of  the  Liva,  and  to  do 
what  is  necessary ; 

To  keep  a  tabulated  summary  register  for  each 
Kaza  at  the  capital  of  the  Sanjak,  to  examine  the 


Instructions  Concerning  Tapu  Affairs.    191 


counterfoil  certificates  coming  from  the  Kazas, 
have  them  entered  in  the  Summary  Register  by  the 
clerks  under  them,  and  to  send  them  to  the  capital  of 
the  Vilayet  immediately ;  to  get  counterfoil  certifi- 
cates from  the  capital  and  send  them  to  Kazas  where 
they  are  required  ;  if  there  is  any  money  outstanding 
on  account  of  fees,  cost  of  paper,  and  clerk's  fee  col- 
lectible according  to  the  registration  to  write  to  the 
Kaza  Mudirs  to  collect  it  at  once  and  not  to  allow 
any  arrears ; 

To  confer  with  the  Sanjak  Mutessarif  in  all  cases, 
to  ask  him  in  case  of  difficulty,  and  to  ask  for  the 
authorisation  of  the  Central  Administration  for  the 
things  required  according  to  the  work; 

As  the  degrees  of  such  states  and  the  execution 
according  to  desire  is  according  to  the  intellect  of 
the  official,  the  system  stated  above  will  be  taken 
as  a  basis  of  duty  :  the  adoption  and  execution  of 
whatever  further  degree  of  care  is  necessary  for  the 
attainment  of  the  object  in  accordance  with  this 
basis  will  be  a  cause  of  praise  concerning  the 
officials. 

8.  It  being  under  consideration  to  transfer  to  the  Affairs 
Tapu  officials  and  clerks  the  execution  of  the  necessary 
office  and  registration  work  concerning  land  belonging 
to  Vakfs,  and  the  issue  of  title-deeds  special  to  them 
when  it  is  decided,  details  and  conditions  will  be  given 
in  separate  instructions  (16).  Though  it  is  not  necessary 


192  The  Ottoman  Land  Code. 

Different     to  do  anything  with  regard  to  the  Evkaf  land  now,  as 

land  to  be   the   officials    will   be   held   responsible   if  they   give 

guished.      Arazi  Mirie  certificates  for  places  belonging  to  Vakfs 

and  carry  out  the  Evkaf  procedure  for  Erazi  Mirie,  and 

as  the  kind  and  condition  of  each  is  stated  in  the 

Summary  .Register  kept  by  the  Tapu  official,  care  must 

be  taken  to  distinguish  these  in  the  registration  now 

carried  out. 


staff  of  9.  The  Tapu  office  at   the  capital  of  the  Vilayet 

Office.  under  the  management  of  the  assistant  Mudir  will  be 
composed  of  seven  clerks,  each  assigned  to  one 
Sanjak  and  one  Eegistrar  of  Papers ;  the  whole  will 
be  under  the  supervision  and  responsibility  of  the 
Mudir.  When  the  Sanjak  officials  are  chosen  and 
appointed  the  Registrar  necessary  at  the  capital  will 
also  be  chosen  and  appointed.  On  application  for 
authority  from  the  Vilayet  other  clerks  besides  these 
will  be  employed  in  future  when  it  is  considered 
necessary  to  fill  in  and  compare  the  permanent  Tapu 
title-deeds  with  the  Imperial  cypher  in  accordance 
with  the  counterfoils  received  from  each  Sanjak.  The 
clerks  of  each  Sanjak  will  first  examine  whether  there 
is  anything  contrary  to  law  and  rule  among  the  title- 
deeds  received,  after  the  Tughra  title-deeds  in  accord- 
ance with  them  have  been  filled  in  and  compared,  the 
number  of  papers  in  a  set,  the  number  of  the  set,  the 
name  of  the  alienee  and  the  total  of  all  will  be  filled  in  . 
the  columns  of  a  separate  printed  journal,  and  after  the 


Instructions  Concerning   Tapu  Affairs.    193 

• 

foot  has  been  sealed  by  tin*  Defter  Kliakani  Mudir  of 
the  Vilayet,  together  with  the  title-deeds  and  Ma/batas 
will  be 'sent  with  a  despatch  from  the  Vilayet  to  the 
Defter  Khane  Khakani. 

10.  The  salaries  of  the  Mudir,  Assistant,  Clerks  and  Salaries  <>\ 
Kegisirars  of  the  Tapu  Office  at  the  Capital  of  the  °fficials' 
Vilayet,  and  the  Tapu  Officials  and*  Clerks  at  the 
Capitals  of  Sanjaks  will  be  paid  by  half  the  three 
piastres  cost  of  paper  of  certificates  issued  under  the 
new  system,  and  from  the  known  sum  which,  by 
Imperial  decree,  is  ordered  to  be  detained  as  a  set-off 
or  those  who  are  permanently  employed  in  the 
Vilayet,  whose  salaries  are  paid  by  the  Treasury,  and  as 
he  other  half  of  the  cost  of  the  Tapu  paper  will  be  sent 
is  before  to  the  Defter  Khane  Khakani,  there  will  be 
:n  administration  safe  under  the  supervision  of  the 
)efter  Khakani  Mudir  and  his  assistant,  and  under 
the  care  and  management  of  the  Guaranteed  Registrar 
of  Papers  at  the  Centre,  and  a  journal  of  the  revenue 
and  expenditure,  and  two  separate  books  showing  the 
nature  and  details  of  the  collections  into  and  payments 
out  of  this  safe  \\ill  be  kept.  Consequently  the  three 
piastres  cost  of  paper  paid  to  the  Treasury  by  means 
of  the  Tapu  clerks  in  the  Kazas  and  sent  from  there 
to  the  Treasury  at  the  capital  of  the  Liva  will  be  taken 
by  the  Tapu  officials  on  giving  a  receipt  to  the  Treasury, 
and  the  sixty  paras  of  this  belonging  to  the  Defter 
^  Khane  Khakani  being  separated  after  the  salaries  of 

o 


194  The  Ottoman  Land  Code. 

Salaries  of  the  Tapu  official  and  clerks  at  the  capital  of  the  Liva 
have  been  paid  against  receipt  from  the  other  sixty 
paras,  the  balance  will  be  sent  to  the  central  Tapu 
office,  and  the  half  of  the  cost  of  paper  will  be  sent  as 
usual  from  the  place  of  origin  direct  to  the  Defter 
Khane  Khakani.  After  the  salaries  of  the  local  officials 
have  been  paid  from  half  the  cost  of  paper  received 
in  the  Livas,  as  the  balance,  will  be  paid  into  the  said 
safe  after  the  sums  decided  to  be  paid  to  the  Printing 
Office  at  the  fixed  rate  as  cost  of  printed  paper  at  the 
Centre  have  been  paid  by  Sened  to  the  Printing  Ad- 
ministration, and  the  salaries  of  the  Mudir,  Assistant, 
and  Clerks  have  been  paid  from  this  revenue,  also,  the 
balance,  in  short  the  surplus  after  the  approved  - 
salaries  and  expenses  have  been  paid,  will  be  detained 
as  a  set-off  against  the  expenses  of  future  months. 
If  the  monthly  receipts  from  half  the  cost  of  paper  at 
the  capital  of  the  Liva  are  not  sufficient  for  the 
salaries  of  the  officials,  as  it  will  be  necessary  that 
the  balance  should  be  paid  from  receipts  of  future 
months,  and  that  this  system  and  rule  should  be 
observed  at  the  centre  also,  and  at  the  end  of  the  year : 
(a)  by  taking  a  general  account  of  the  Tapu  Adminis- 
tration safe;  (I)  by  paying  any  unpaid  expense,  if 
found,  on  account  of  the  Liva  Memours'  salaries  and 
expenses  which  have  not  been  paid,  also  from  the 
surplus  revenue,  if  any,  after  the  salaries  and  expenses 
paid  up  to  the  end  of  the  year,  whether  from  the 
revenue  arising  from  half  the  cost  of  paper  or  whether 


Instructions  Concerning  Tapu  Affairs.    195 

% 

taken  from  the  Treasury  as  old  assignments  and  salaries  Disposal  of 
have  been  deducted ;  (c)  by  delivering  the  surplus  to  revenue. 
the  Central  Treasury  and  entering  it  as  revenue  for 
the   Imperial    Treasury,  it  will  not   be   permitted  to 
transfer  the  revenue  of  one  year  to  another  year,  and, 
at  the  end  of  the  year,  if  the  surplus  revenue,  after 
deducting  expenses,  does  not  completely^  cover  all  the 
unpaid  salaries  and  expenses  by  dividing  and  paying  it 
in  proportion  to  the  amount  of  the  unpaid  salaries,  the 
account  of  that  year  will  be  closed. 

11.  The     title-deeds    sent    to    the    Defter    Khane  Registra- 
Khakani  will  be  registered  and  sealed  there  also  after  seaHng  of 

if  they  have  been  examined,  and  the  sealed  journal  being  tx  eds- 
kept  as  a  receipt  until  the  arrival  of  the  certificates 
that  are  subsequently  collected  and  sent,  the  Tapu 
title-deeds  will  be  returned  to  the  Centre  of  the 
Vilayet  exactly  as  they  are  in  sets,  and  if  there  are  any 
among  them  contrary  to  law  and  system  their  require- 
ments will  be  explained  or  corrected,  and  they  will  be 
sent  together  also.  After  a  note  has  been  made  against 
the  entry  they  will  be  sent  from  the  Centre  to  the 
Capitals  of  the  Livas. 

12.  The  sealed  title-deeds  returned  from  the  Centre 
to  the  Capital  of  the  Liva  will  be  sent  at  once  to  the 
connected    Kaza    after   having  been    noted    in    the  *° the 

Kaza. 

tabulated  register  in  accordance  with  the  old  rule,  and 
t>n  immediate  gratuitous  delivery  by  the  land  clerk  of 

o  2 


196  The  Ottoman  Land  Code. 

* 

the   Kaza  to  their  owners,  the  counterfoil   certificate 

previously  issued  will  be  taken  and  sent  to  the  Capital 
of  the  Liva. 

status  of         13.  The  Arazi  Memours  and  Kaza  Tapu  clerks  will 
be  considered  as  members  of  the  Meilis  Idare  of  the 

Memours  •> 

Hud  Kaza    Liva  and   Kaza   in  which   they   are   stationed   when 

derks.        matters    affecting    land    are    being    discussed.      The 

Mazbata  drawn  up  at  the  end  of  the  proceedings  after 

discussion  will  be  sealed  by  them  together  with  the 

other  members. 

Travelling  14.  When  the  Mudir  of  the  Defter  Khane  Khakaui 
ses*  or  his  assistant  proceed  to  a  place  to  make  inquiries 
as  before,  they  will  be  entitled  to  receive  horse  hire 
according  to  distance  for  three  horses.  The  Sanjak 
Arazi  Memours  will  be  entitled  to  the  hire  of  two 
horses  for  proceeding  to  places  within  the  Sanjak. 
These  sums  will  also  be  paid  from  half  the  cost  of 
paper.  The  distance  going  and  coming  of  the  place 
visited  each  time  will  be  calculated  according  to  the 
Mazbata  of  the  Mejlis.  In  accordance  with  the  rule 
in  force  concerning  all  officials  the  Tapu  officials  must 
pay  for  all  requirements  and  necessaries  in  the  places 
which  they  visit.  Any  infringement  of  this  rule  will 
be  a  cause  of  offence  and  responsibility  (17). 

Apportion-  15.  A  fixed  portion  for  stationery  will  be  assigned 
Tsfof  f°r  each  Central  Tapu  Office  and  Land  Office  in  the 
paper.  ganjaks  ;  a  fixed  sum  will  also  be  assigned  annually 


Instructions  Concerning  Tapu  Affairs.    197 
» 

for  each  Centre  as  cost  of  fuel  and  divers  expenses ;  office  ex- 
an  officy-keeper  will  also  be  appointed  to  the  Central  peu 
Tapu  Office.  These  expenses  will  also  be  paid  from 
the  half  of  the  cost  of  the  paper.  In  short,  from 
March,  1282,  nothing  will  be  issued  from  the  Govern- 
ment treasuries  as  salary  and  other  expenses  of  the 
Tapu  officials.  The  degrees  and  actions  ,of  the  officials 
are,  for  the  present,  described  in  these  Instructions. 
Official  notification  will  be  sent  from  the  Centre  of 
the  Vilayet  of  any  modification  made  in  consequence 
of  the  experience  gained  by  practice. 


198  The  Ottoman  Land  Code. 


XIX.  LAW  CONCERNING  THE  PROCE- 
DURE OF  YAKFS  MUSAKAFAT  AND 
MUSTEGHILLAT. 


CHAPTEK  I. 

CONCERNING  THE   DIFFERENT   KINDS    OF  VAKFS 
AND   RIGHTS    OF   POSSESSION. 

1.  Yakfs    in    the   Ottoman  Dominions   are   of  two 
classes : — 

i.  Mazbuta  Vakfs 

ii.  Non-Mazbuta  Vakfs. 

Definition  Mazbuta  Vakfs  are  Vakfs  of  which  the  appointment 
Vakfs.  of  trustees  and  management,  or  if  the  appointment  of 
trustees  is  under  the  charge  of  the  beneficiary,  only 
the  management  is  subject  to,  and  all  affairs  are 
administered  directly  by,  the  Imperial  Evkaf  Treasury. 
Non-Mazbuta  Vakfs  are  Vakfs  which  are  administered 
by  the  Trustees  (Mutevelis)  under  the  supervision  and 
with  the  knowledge  of  the  Imperial  Evkaf  Treasury. 

2.  Musakafat  are  places  on  which  there  are  buildings, 


,  Procedure  of  Vakfs.  199 

i  — 

and  which  are  prepared,  and  special,  for  the  erection  of  Definitions. 
buildings.     Musteghillat  are  lands  from  which  a  profit 
is  derived  by  means  of  possession,  such  as  agriculture 
and  planting  of  trees. 

Gediks  (appurtenances)  are  equivalent  to  Musakafat. 

3.  The  possessory  procedure   according  to   the  dif-  Procedure. 
erent  kinds  of  land  belonging  to  Yafcfs  is  subject  to 
the  provisions  of  Art.  4  of  the  Imperial  Land  Law. 


4.  One  class  of  Musakafat  is  alienated  and  taken  in 
Ijaretein.     The  other  class  is  possessed  by  the  Vakf  a\eieil^ie 
by  way  of  Ijare  Yahide.     When  Musakafat  held  in  £injare~ 
Ijaretein  is  handed  over  by  the  Yakf^  a  Muajele  equal 
to  its  true  value  and  a  fixed  annual  Muejele  will  be 
pa"id  to  the  Yakf.     It  can  also  be  alienated  and  in- 
herited (1).     Ijare  Yahide  Musakafat  and  Musteghillat 
are  let  by  the  Yakf  for  a  fixed  period,  and  cannot  be  Non-alien- 
alienated  and  inherited  ;  this  law  does  not  apply  to 
them. 


5.  The   Musakafat    and   Musteghillat   of   Mazbuta  Descent  of 
Yakfs  held  in  Ijaretein  are  inherited  by  the  children,  vakfe. 
grandchildren,  parents,  brothers  and  sisters,  german, 
consanguineous,  and  uterine,  husband  and  wife.     The 
Musakafat  and  Musteghillat  of  Non-Mazbuta  Yakfs  held 
in  Ijaretein  is  inherited  by  the  children  only.     The 
rules  with  regard  to  the  inheritance  of  Mazbuta  Yakfs 
are  fixed  by  a  special  law  (2). 


2OO  The  Ottoman  Land  Code.  , 

: I 

Disposal  on  6.  If  there  are  no  persons  having  the  right  of 
heirs.  inheritance  to  the  Musakafat  and  Mustegl^illat  of 
Mazbuta  and  Non-Mazbuta  Yakfs  as  stated  in  Art.  5, 
they  will  be  taken  by  the  Yakfs  (3)  as  Mahlul  and 
leased  by  auction.  The  auction  and  lease  of  Mahluls 
will  be  carried  out  in  accordance  with  the  provisions 
of  a  special  lajv  (4). 


• 


CHAPTEE  II. 

CONCERNING  THE  FORMATION  OF  THE  ADMINISTRATION 
OF  TITLE-DEEDS  AND  THE  MODE  TO  BE  ADOPTED 
IN  KEEPING  THE  REGISTERS. 

7.  The  Imperial  Evkaf  Title-Deeds  Administration  Title-deeds, 
is  divided  into  two  branches,  called  the  Musakafat  and  tration!" 
Gediks  Offices,  under  one  Mudir,  who  shall  also  have 
assistants. 

8.  There  will  be  a  sufficient  number  of  inspectors,  staff. 
valuers,  and  assistant  inspectors  in  the  Musakafat  and 
Gediks   Offices,  and   engineers  will   be   employed   as 
required.     The  procedure  necessary  with  regard  to  the 
duties  of  these  officers,  the  number  of  clerks  and  super- 
numeraries  employed,  and   their   promotion,  will   be 
stated  in  special  instructions. 

9.  The  requisite  number  of  Jabis  and  a  Treasurer  Jabis  and 
who  has  given  security  will  be  employed.     One  of  the  T] 
Jabis  will  be  head  of  the  others.     The  duties  of  these 
officers  will  be  fixed  by  special  instructions. 

t 

10.  A    separate    register  of   the    Musakafat  and 


2O2  The  Ottoman  Land  Code. 


Separate  Musteghillat  of  each  Mazbuta  and  Non -Mazbuta  Vakf 
in  Constantinople  and  the  three  cities  will  be  kept  by 
and  under  the  supervision  of  the  Title-Deeds  Adminis- 
tration. 


ciassifica-  11.  The  registers  of  the  Title-Deeds  Administration 
registers,  will  be  divided  into  four  classes  : — 

CLASS  1.  3aremem  Yakfs. 

CLASS  2.  Vakfs  of  the  Sultans  and  their  Depend- 
ents. 

CLASS  3.  Mazbuta  Vakfs  other  than  the  above. 

CLASS  4.  Non-Mazbuta  Vakfs. 


Prepara-         12.  All  these  registers  will  be  prepared  in  one  shape* 
rasters.    an(l  size-     The  mode  of  preparation  will  be  defined  in 
special  instructions. 

Seal.  13.  A  seal  bearing  the  sentence  "  Correct  Entry  "  will 

be  made  and  affixed  under  each  registration. 

Duties  of        14.  All  registrations  will  be  made  by  the  clerks  of 
clerks'       the  Title-Deeds  Office. 


(     203     ) 


CHAPTER  III. 

CONCERNING   THE   SYSTEM   OF   AIJENATION 
AND   INHERITANCE. 

15.  Musakafat  and  Musteghillat  Vakfie  held  in 
Ijaretein  can  be  alienated  definitely  or  by  mortgage 
(Yefaen  Feragh).  It  also  descends  by  inheritance,  in 
accordance  with  the  system  stated  in  Art.  5.  The  way 
in  which  alienation,  definite  and  by  mortgage  (Feragh 
bil  Vefa),  should  be  carried  out  is  stated  in  this  chapter  : 
it  is  forbidden  to  execute  it  in  any  other  way  (5). 


16.  The  conditions  and  procedure  to  enable  Musa-  Debt.  . 
kafat  and  Musteghillat  Vakfie  to  satisfy  debt  during 

the  lifetime  or  after  the  death  of  the  debtor  are  defined 
in  special  laws  (6). 

17.  The  alienation,  definite  or  by  mortgage  (Vefaen  purchases 
Feragh),  and  the  inheritance  of  Musakafat  and  Muste- 
ghillat  and  Gediks  of  all  Mazbuta  and  Xon-Mazbuta 
Vakfs  in  Constantinople  and  the  three  cities  must  be 
carried  out  in  the  Title-Deeds  Office.    The  depositions 

of  the  alienor  and   alienee  or  their  agents  and  the 
Mutevelis  of  Non-Mazbuta  Vakfs  will  be  taken  in  their 


2O4  The  Ottoman  Land  Code. 

—  _ ^ 

Purchases  presence  by  the  Mudir  of  Title-Deeds  or  his  assistants. 

gages.  By  special  permission  in  writing  from  the  Evkaf 
Ministry  the  Mudirs  of  Title-Deeds  and  their  assistants 
may  take  depositions  outside  their  office.  If  the  Mute- 
velis  of  Non-Mazbuta  Vakfs  or  their  agents  are  not 
present  at  the  alienation,  the  depositions  may  be  taken 
by  the  Title-Deeds  Office,  and  subsequently  communi- 
cated to  the  Matevelis  and  their  sanction  obtained. 


Exempted  18.  Only  the  alienation,  inheritance,  and  issue  of 
title-deeds  for  Musakafat  and  Musteghillat  of  exempted 
Non-Mazbuta  Vakfs  will  be  carried  out  at  the  Imperial 
Evkaf  Treasury  in  accordance  with  the  law.  The 
advantages  and  receipts  will  belong  to  the  bene- 
ficiaries. 


Proof  of  19.  When  Musakafat  and  Musteghillat  of  Mazbuta 
descent.  and  Non-Mazbuta  Vakfs  is  inherited  in  accordance  with 
Art.  5,  the  persons  having  the  right  to  inheritance  or 
their  agents,  and  if  the  former  are  minors  their  rela- 
tions or  guardians,  must  prove  their  existence  to  the 
Mudir  of  Title-Deeds  or  his  assistants  and  show  the 
title-deeds  in  their  possession. 

Duties  of        20.  When  a  person  wishes  to  alienate  definitely  or 
mortgagor,  by  mortgage  (Vefaen  Feragh),  Musakafat  and  Muste- 
ghillat Vakfie,  the  alienor  must  show  his   title-deed 
and  have  it  compared  with  the  Vakf  register  to  prove , 
the  truth  of  his  possession.     If  he  has  lost  his  title- 


Procedure  of  Vakfs.  205 

» 

deed,  in  accordance  with  Art.  31,  his  deposition  will  be 
taken  in  order  that  a  new  title-deed  may  be  issued,  but 
only  the  formalities  will  be  carried  out:  the  preparation 
of  the  title-deed  issued  to  losers  is  stopped. 

21.  After  the  truth  of  the  possession  of  the  alienor  Valuation, 
has  been  proved,  in  case  of  necessity  the  value  of  the 
building,  building  site,  or  land  to  be  alienated  will  be 
estimated  by  a  valuer. 

22.  The  following  fees  will  be  taken  :— 

50%0  on  the  value  of  Musakafat  and  Musteghillat  Duties. 
and  Gediks  alienated,  25%o  on  their  inheritance  by 
children,  10%0  on  the  amount  of  the  debt  on  their 
mortgage  (Vefaen  Feragh),  10%0  on  the  amount  of  the 
debt  on  cancellation  of  mortgage  (Feragh  bil  Vefa), 
5U%0  on  the  alienation  and  inheritance  of  land,  40%0  on 
the  inheritance  by  grandchildren  of  Musakafat  and 
Musteghillat  belonging  to  Mazbuta  Vakfs,  50%o  on  the 
inheritance  by  parents,  60%o  on  the  inheritance  by 
brothers  and  sisters,  german,  consanguineous,  and 
uterine,  and  husband  and  wife. 

23.  The  taking  of  more  or  less  than  these  fees  and  Remission 
their  postponement  is  not  allowed,  but  of  the  fees  that  dutiet  °r 
will  be  paid  by  poor  and  necessitous  persons,  the  Evkaf 
Ministry  is  permitted  to  forego  at  most  250  piastres  of 

the  shares  which  belong  to  thesEvkaf  Treasury. 
t 

24.  Any  expenses,  such  as  horse  and  boat  hire,  and 


2o6  The  Ottoman  Land  Code. 

i 

< 
Cost  of       fare    by   steamers   going   and    coming,   incurred   by 

valuers  and  engineers  in  inspecting  Musakafat  and 
other  properties  in  places  distant,  or  beyond  the  seas, 
will  be  calculated  according  to  the  distance  of  the 
place  and  time  occupied,  and  deducted  and  paid  from 
the  fees  payable  on  alienation,  definite  or  by  mortgage 
(Vefaen  Feragh),  and  inheritance  of  Musakafat  and 
Musteghillat.  - 


207 


CHAPTER  IV. 

CONCERNING   THE    MODE   OF   PREPARATION   OF 
TITLE-DEEDS   OF   VAKFS. 

•25.  The  title-deeds   of  Vakfs   are   of   two  kinds :  Title-deeds 
1.  Are  for   Musakafat  and   Musteghillat  of  Mazbuta  ° 
Vakfs ;  these,  which  are  found  at  the  Evkaf  Ministry, 
will   be   sealed  with  its  original  seal.     2.  Belong  to 
*Musakafat  and  Musteghillat  of  Non-Mazbuta  Vakfs; 
these,  after  having  been  sealed  by  the  Mutevelis,  will 
be  sealed  with  the  seal  of  the  Ministry  and  issued. 

26.  From  the  date  of  the  promulgation  and  execu-  Form  and 
tion  of  this  law,  the  title-deeds  of  Vakfs  will  be  title-deeds, 
written  on  the  official  printed  paper  specially  prepared. 
In  all  kinds  of  buildings  and  building  sites,  alienated 
and  received,  the  number,  boundaries,  form,  value,  area 
(ziras)  if  possible,  names  of  the  Vakf  to  which  it 
belongs,  alienor,  alienee,  and  whether  the  alienation  is 
definite,  will  be  noted  and  explained  in  the  form  at  the 
top  of  the  title-deeds.  These  formalities  will  also  be 
carried  out  in  cases  of  inheritance.  As  soon  as  a 
definite  alienation  and  inheritance  is  carried  out  these 
title-deeds  will  be  renewed.  For  mortgage  (Feragh 


208  The  Ottoman  Land  Code. 

- 

Method  of  bil  Yefa)  a  temporary  title-deed  will  be  issued  to  the 

executing 

mortgage,  mortgagee,  a  note  will  be  made  at  the  back  of  the 
original  title-deed  in  the  hands  of  the  mortgagor  that  it 
has  been  mortgaged  (Feragh  bil  Vefa),  and  a  note  will 
be  made  against  the  registration.  On  cancellation  of 
mortgage  (Feragh  bil  Vefa)  a  note  will  be  made  on 
the  original  title-deed,  and  the  temporary  title-deed  in 
the  hands  of  the  mortgagee  will  be  taken  and  annulled. 

Temporary      27.  As    stated    in   Art.  29,    when    alienation    and 

ate<  inheritance    take   place,  until    the    preparation   and 

issue  of  the  official  title-deed  in  accordance  with  Art. 

28,  a  temporary  certificate  will  be  issued  to  the  alienee. 

Receipt  of  28.  .When  the  alienation  and  inheritance  of  Musa- 
ti"le-deeds.'  kafat  and  Musteghillat  is  being  carried  out,  the  title- 
deeds  in  the  hands  of  the  alienor  will  be  taken  and 
kept,  and  a  temporary  counterfoil  certificate,  sealed  by 
the  Title-Deeds  Administration,  showing  the  date  when 
the  alienation  was  carried  out,  the  Vakf  of  the  thing 
alienated,  and  the  number  of  the  property,  its  kind, 
Certificate,  price,  value,  and  the  names  of  the  alienor  and  alienee, 
will  be  issued  to  the  alienee.  And  the  nationality  of 
the  alienor  and  alienee  will  be  shown  at  the  top  of  the 
registration  in  the  Vakf  Register. 

Compari-  29.  The  title-deed  .taken  from  the  alienor  will  be 
deed  with6"  compared  with  the  registration  in  the  Register  of  the 
register,  y^f  to  wnicn  the  Musakafat  and  Musteghillat  belongs. 


Procedure  of  Vakfs.                 209 
\ 

The  mode  of  alienation  and  inheritance,  and  date  on 

which  it  was  carried  out,  will  be  registered. 
i 

30.  If  a  Musakafat  and  Musteghillat  is  composed  of  Separ 
numerous  Yak  is,  separate  title-deeds  showing  the  area  tith" 

for  each 

(zirns)  and  boundaries  will  be  prepared,  but  a  tabulated  Vakf. 
certificate  showing  the  numbers,  and  a  summary 
description  of  the  place  contained  ia  each,  will  be 
issued  to  the  owner,  and  in  case  of  alienation  and 
inheritance  it  is  absolutely  necessary  that  this 
certificate  should  be  shown  to  the  Title-Deeds 
Administration. 

j     31.  If    a   Muteveli   is   missing   or   without    reason  Sealin   b 
neglects  to  seal  a  title-deed  by  a  certificate  from  the  Mudir- 
Mehkeine  Teftish  (7)  the  Mudir  of  Title-Deeds  will  be 
appointed  substitute,  seal  the  said  title-deed,  and  issue 
it  to  its  owner.     Nobody  but  the   Mudir  shall  have 
power  to  seal  a  title-deed  as  substitute. 

32.  The  title-deeds  of  owners  who  have  lost  their  Renevval  ot 
title-deeds  and  tabulated  certificates  will  be  renewed  lost  title- 
after  the  truth  of  the  possession  has  been  ascertained 
from  the  registers,  and,  in  case  of  doubt  arising  from 
the  registers,  after  the  matter  has  been  inquired  into 
and  judgment  given  by  the  Mehkeme  Teftish. 


2io  The  Ottoman  Land  Code. 


CHAPTER  V. 

CONCERNING  COLLECTING  (jABl)   AND  CLERICAL  SERVICES. 

Collectors        33.  The  collecting  work  of  Mazbuta  Vakfs  will  be 
3>  done    by   paid   collectors,   and   the   clerical   work   of 
Mazbuta  and  Non-Mazbuta  Vakfs  will   be   done   by 
clerks  employed  in  the  Title-Deeds  Office. 

i 

Salaries          34.  After  the  date  of  the  promulgation  of  this  law, 

sionsPeD  possessors  of  collectorships  and  clerkships  of  Mazbuta 
Vakfs,  and  clerkships  of  Non-Mazbuta  Vakfs  who  are 
honest  and  capable  will  be  salaried  and  employed 
under  the  Title-Deeds  Administration.  The  others 
will  be  retired  with  the  balance  of  the  fixed  revenue 
belonging  to  them,  at  the  rate  of  30%0  on  the  definite 
alienation  and  15%o  on  the  mortgage  (Feragh  bil  Vefa) 
and  inheritance  of  Musakafat,  after  \  has  been  de- 
tained for  the  Treasury. 

Certain  35.  The  vacant  posts  of  collector  of  Mazbuta  Vakfs 

dfscend-01    aud  clerk  of  Non-Mazbuta  Vakfs  will  not  be  conferred 

ible.  on  children  by  way  of  inheritance  and  on  anybody  else 

in  any  other  v\  ay :  they  will  be  taken  by  the  Treasury. 


Procedure  of  }  \ikfs.  2  1 1 

* 
The  c'ol  lectorsh  ips  ot  Non-Mazbuta  Vaki's  and  cl^rk- 

ships  held  in  mortmain  (3lL^hriitict )  pt  from 

this   rule,  the   appointments  will   be   carried   out   as 
before. 

!>.  Jemazi  til  akhir,  1287. 


P   2 


212  The  Ottoman  Land  Code. 


XX.  AUCTION  OF  MAHLUL  LAND. 


REGULATIONS    MODIFYING    AET.    18    OF    THE 

TAPU    LAW. 

VEZIRIAL    (1)    OKDER    CONCEENING    THE    FORMALITIES 
OF    PUTTING    UP    TO    AUCTION    MAHLUL    LAND. 

Kedjeb,  1288. 

Auction  of  It  is  known  by  Your  Excellency  that  the  18th  article 
land. U  °f  ^ne  Tapu  Law  is  thus  conceived  :  "  The  sale  by 
auction  of  Mahlul  land  which,  either  from  want  of 
persons  having  right  to  Tapu  or  from  the  renunciation 
of  this  right  by  those  who.  had  a  right,  and  which  can 
be  sold  by  auction,  is  made  by  the  Kaza  Mejlis  when 
the  extent  of  these  lands  does  not  exceed  100  domains ; 
in  case  these  lands  have  an  area  of  100  to  500 
donums  a  new  auction  is  made  by  the  Liva  Mejlis 
and  its  adjudication  is  made  to  the  last  and  highest 
bidder ;  in  case  the  extent  of  these  lands  exceeds  500 
donums,  after  the  above  auction  a  report  is  addressed 
to  the  Ministry  of  Finance  relative  to  it,  in  order 
that  another  auction  of  them  be  made  by  the  Imperial r^ 


Auction  of  Mahlul  Land. 


;<urv  .-it  the  said  Ministry: — the  definitive  adjudi- n^: 
ration  rnust   be   made  within  three  months   at   most  • 
from  the  day  of  the  arrival  of  the  report  in  question 
at  ( 'mi-taut  inople. 

Hut  since  the  putting  in  force  of  the  law  about 
Vilayets  it  has  been  decided  that  the  report  shall  be 
submitted  by  the  Council  of  the  Governpr-General  to 
the  Ministry  of  Finance. 

However,  the  system  of  submitting  the  affair  of  the 
Kaza  to  the  Sanjak,  from  there  to  the  Governor- 
General,  and  from  the  latter  to  Constantinople,  as  well 
as  the  granting  these  lands  by  means  of  correspondence, 
with  many  other  formalities,  and  the  delays  which 
result  from  it  cools  the  zeal  of  the  buyers,  who  no 
longer  offer  on  the  spot  the  desired  price,  or  entirely 
keep  away  from  the  auctions  on  account  of  the  diffi- 
culties they  meet  with, — 

Thus  a  great  number  of  Mahlul  lands  are  not  sold 
at  all,  to  the  deteriment  of  the  Imperial  Treasury.  For 
this  reason  the  Commission  on  reforms,  with  the  inten- 
tion of  putting  a  stop  to  these  difficulties  and  thus  to 
augment  the  resources  of  the  said  Treasury  and  to 
facilitate  the  people  in  the  acquisition  of  these  lands  in 
order  to  encourage  agriculture,  has  decreed  as  follows : 
The  final  granting  of  Mahlul  lands  having  an  extent 
of  300  donums  and  saleable  by  auction  must  be  made 
to  the  last  bidder  by  the  Kaza  Mejlis ;  in  case  the  lauds  ^Te\v  pro- 
have  an  extent  of  300  to  500  donums  the  final  delivery  °e 
is  to  be  made  by  the  Liva  Mejlis,  but  when  these  lands 


214  The  Ottoman  Land  Code. 

New  rules,  have  an  extent  exceeding  500  donums  a  new  sale  by 
auction  is  made  by  the  Administrative  Council  of  the 
Govern  or -General.  The  Secretaries  as  well  as  the 
employes  charged  with  the  delivery  of  the  Tapus,  are 
to  be  present  in  all  these  cases  of  public  sale,  the  first 
in  the  Kaza  and  the  second  in  the  Sanjak  and  the 
relative  Vilayet.  In  case  of  a  sale  by  auction  of  lands 
having  a  greater  extent  than  500  donums,  this  sale 
will  be  made  by  the  Council  of  the  Vilayet.  But  as  it 
is  possible  that  there  may  be  at  Constantinople  even 
a  buyer,  in  order  that  he  may  be  informed  of  it  and 
be  able  to  bid  on  the  spot  either  in  person  or  by  his 
attorney,  a  notice,  besides  the  one  inserted  in  the 
paper  of  the  Vilayet,  will  be  sent,  before  the  sale  by 
auction  by  the  Governor-General,  to  the  printing  office 
of  the  Ministry  of  Public  Works.  This  notice,  maki 
known  when  the  sale  by  auction  commences  an 
finishes  and  when  the  adjudication  will  take  place, 
must  be  published  also  in  the  papers  of  Constantinople 
for  the  above  ends. 

In  all  these  cases  of  public  sale  the  sub-governors  of 
Kaza*,  the  governors  of  Sanjaks  and  the  Valis  of 
Vilayets  will  take  care  to  have  the  above  notices 
and  insertions  made  in  time,  to  perform  the  other 
formalities  required  by  the  law  and  the  regulations,  to 
prevent  any  fraud  which  might  injure  the  interests 
of  the  Imperial  Treasury. 

The  other  competent  authorities  having  had  informa- 
tion of  what  precedes,  Your  Excellency  will  have  the 


,          Auction  of  Mahlul  Land.  215 

* 

goodness  to  conform  to  it  in  the  Vilayet  under  your 
jurisdictipn  and  do  all  you  possibly  can  that  the 
management  of  these  lands  will  be  taken  care  of 
conformably  to  the  beneficent  intentions  of  His 
Majesty  the  Sultan  in  favour  of  his  people,  and  in 
order  that  the  Imperial  Treasury  draw  from  it  the 
expected  profits,  the  zeal  of  the  purchasers  of  these 
lands  bein£  on  the  increase.  • 


2i6  The  Ottoman  Land  Code. 


XXI.  LAW  CONCEENING  CONDITIONS 
FIXING  ,THE  SECUEING  OF  DEBT 
AFTEE  DEATH  BY  AEAZI  MIEIE 
AND  MEVKUFE,  AND  MUSAKAFAT 
AND  MUSTEGHILLAT  VAKFIE. 


21.  Eamazan,  1288. 
APPENDIX. 

Sale  of  6.  The  Mnsakafat  and  Musteghillat  Mevkufe  pos- 

r^for  sesse^  in  Ijaretein,  and  the  Arazi  Mirie  and  Vakfie  of 
debt.  persons  who  die  owing  money  to  the  Government  per- 
sonally or  as  guarantee,  and  whose  Ernlak  Metrake  is 
not  sufficient  for  the  payment  of  their  debt  to  the 
Government,  will  be  sold  and  the  debt  paid  from 
their  value. 

Exemption       7.  Mahluls  are  exempt  from  the  authority  of  the 
of  Mahiul   jag^.  artjc}e  an(j  ^ne  amount  of  the  claim  of  the  mort- 

Janas. 

gagee  in  the  value  of  the  lands  which  have  been  mort- 
gaged (Vefaen  Feragh)  to  him  cannot  also  be  interfere 
with.     And  also  if  the  heir  who  inherits  Mueakafat  and 


Securing  of  Debt  after  Death.  217 

|T~ 
Musteghillat    MVvkufe    has    no   house,   a    habitation  Saving  as 

sufficient^  for  him  to  live  in  shall  not  be  sold,  and  if  dwelling, 
the  maintenance  of  the  deceased  debtor  depended  on 
agriculture,  sufficient  land  for  the  maintenance  of  his 
house  will  not  be  taken  from  his  heirs.  The  amount 
of  the  land  that  will  be  left  to  the  heirs  in  this  way 
will  be  fixed  by  the  Court  to  which  the  case  belongs. 


21 8  The  Ottoman  Land  Code. 


XXII.  LAW  CONCERNING  THE  SALE 
OF  IMMOVABLE  PROPERTY  FOR 
DEBT*  (1). 


Certain  1.  Musakafat  and  Musteghillat  Mevkufe  possessed  in 

vendible      Ijaretein  and  Arazi  Mirie  can  be  sold  like  movables 

debtt     for  a  judgment  debt  without  the  consent  of  the  debtor, 

but  one  of  the  houses  of  the  debtor  appropriate  to  his 

state  will  not  be  sold  for  the  debt :  it  will  be  left.     If 

Saving  as    the  debtor  is  an  agriculturist,  a  sufficient  quantity  of 

house  or     his  land  for  the  management  of  his  house  will  like- 

landam       wise  not  be  sold,  but  left  if  it  has  not  been  mortgaged 

(Rehn)  or  put  under  a  rule,  like  Vekialet  Devrie.    The 

amount  of  the  land  which  will  be  left  will  be  fixed  by 

the  Court  which  hears  the  action. 


Land,  &c.,  2.  If  the  debtor  proves  that  the  nett  revenue  of  his 
soidVf be  immovable  property  for  three  years  is  sufficient  to  pay 
enough  ^he  debt  with  the  legal  interest  and  expenses,  and  he 

personal 
property. 

NOTE.* — There  is  a  letter  from  the  Ministry  of  Justice,  dated  29. 
Rejeby  1302,  relating  to  certain  articles  of  this  law  leing  in  force. 


Sale  of  Immovable  Property  for  Debt.    2 1 9 
f 

concedes  to  the  creditor  its  recovery,  the  sale  of  his 
iminoval>V  property  will  be  abandoned. 

3.  A  person  who  accepts  the  amount  of  the  judg-  RiL,ht  of 
rnent  debt  by  way  of  Havale  can  claim  the  sale  of  the  **'£""• 
immovable  property  of  the   debtor   like  the  original 
creditor  alter  the  matter  lias  been  communicated  to  the 
debtor. 

4.  The  immovable  property  of  a  debtor  cannot  be  Saving  for 
sold  on  a  judgment  against  which  an  appeal  lies,  and 

in  judgments  given  by  default  it  cannot  be  sold  with- 
out the  time  for  objection  having  passed. 
I 

5.  The  creditor  will  prepare  a  notice  asking  for  the  Notice  by 
payment  of  his  debt,  and  stating  that  if  it  is  not  paid  JjJjT  tc 
he  will  ask  for  the  seizure  and  sale  of  the  immovable 
property  ;  and,  attaching  a  copy  of  the  judgment,  he  will 

send  it  to  the  debtor,  or  to  his  residence  through  the 
executive  authority. 

6.  The  creditor  shall   not   claim   the   sale   of  the  Debtor  to 
immovable  property  without  thirty-one  days  from  the  ta 
date  on  which  he  sent  the  notice  having  passed;  if 
ninety-one  days  from  the  date  of  the  communication 

have  passed,  he  will  send  a  notice  again ;  on  this  it  is 
necessary  for  another  thirty-one  days  to  pass. 

m  7.  After  the  provisions  of  Arts.  5  and  6  have  been 
carried    out,   a    special   official    from   the    executive 


22O  The  Ottoman  Land  Code. 

— ! - 

Execution,  authority  will  be  sent  to  the  immovable  property,  and 
cause  it  to  be  seized.  A  summary  and  thp  date  of 
the  judgment,  the  nature  of  the  duties  and  departure 
of  the  official  sent,  the  nature  and  boundaries  of  the 
immovable  property,  that  is  to  say,  if  the  immovable 
property  seized  is  khan,  house,  shop,  and  such  like 
property,  the.  town,  Kaza,  quarter,  name  of  the  street, 
number  of  the  floor,  and  the  nature  of  the  property  in 
the  vicinity  of  which  they  are  ;  and  if  it  is  land,  the 
Kaza,  village,  name  of  the  quarter  in  which  it  is 
situate,  the  approximate  number  of  donums,  and  if 
there  are  any  buildings  and  trees  on  it,  their  number 
and  kind  ;  the  name  of  the  Court  which  gave  the  judg- 
ment, and  the  name,  surname,  and  residence  of  the 
plaintiff,  will  be  stated  in  the  seizure  document,  which 
will  be  prepared  for  this  in  duplicate. 

Notice  of  8,  The  matter  will  be  published  by  hand  sheets  and 
in  the  newspapers  twenty-one  days  before  the  day  of 
auction  ;  a  notice  will  also  be  stuck  in  the  places  where 
people  pass  and  collect  in  the  town  where  the  auction 
will  be  held. 

Sale  hy  9.  The  auction  will  close  in  sixty-one  days,  and  on 

whom  the  last  bid  remains  a  temporary  decision  (karar 
dade)  will  be  drawn  up  on  the  auction  bill  by  the 
executive  authority.  In  the  event  of  an  increase  of  at 
least  five  per  cent,  within  thirty-one  days  from  the  date, 
of  the  decision  it  will  be  put  up  to  auction  again,  and 


of  Immovable  Property  for  Debt.     221 

__» ____ 

*  • 

the  increased   bid  with  the  expenses   belonging  t<>   it 

will  lie  i  ik.-n  from   the  last  bidder,  and  the  title-deeds  Convov- 
of  |  i  will  be  Driven  by  the  office  to  which  the' 

immovable  property  is  subject. 

10.  If  the  person  to  whom  the  immovable  property  Liability  of 
put  up  to  auction  has  been  knocked  down  retracts  from  withdraws! 
his  purchase  the  auction  will   be  carried  out  again,  and 

he  will  be  made  to  indemnify  the  damages  and  expenses 
of  action. 

11.  The  officials  who  carry  out  the  auction  and  the  Puffing 
officials  and  members  of  the  Court  which  gives  judg- 
ment for  the  sale  of  the  immovable  property  shall  not 

run  up  the  bids,  if  they  do  so  they  will  be  held  legally 
responsible. 

12.  If  a  person  does  wrong  to  the  auction  he  will  be  Punish- 
punished  in  accordance  with  Art.  218  of  the  Imperial  offender. 
Penal  Code. 

13.  If  a  person  begin  an  action  as  to  ownership  of  Time  for 
immovable  property  put  up  to  auction,  it  is  necessary  ownership, 
that  he  should  take  action  before  the  last  decision  has 

been  given ;  and  if  he  does  not  prove  his  claim  he 
will  pay  compensation  for  all  loss  arising  from  the 
delay  of  the  auction,  and  other  causes ;  but  he  does  not 
lose  the  right  to  take  action  afterwards,  if  he  proves 
that  for  a  valid  reason  he  has  not  been  able  to  take 
action  before  the  last  decision. 


222  The  Ottoman  Land  Code. 

, 
Rights  of         14.  If  the    creditor  does  not   wish  the  immovable 

property  of  the  debtor  to  be  sold  at  the  time  specified, 
another  creditor  shall  have  the  right  to  have  it  sold  in 
accordance  with  the  provisions  of  this  law. 

Option  of        15.  If  a    portion   of  the    immovable    property   is 

to  things     sufficient  to  pay  the  debt,  the  things  which  the  debtor 

wishes  shall  behold  in  his  presence,  and  if  he  is  absent 

things  of  which  the  sale  will  be  advantageous  to  the 

debtor  shall  be  sold. 


APPENDIX. 

Saving  as  Debts  which  have  been  contracted  before  the  date 
debts.  of  publication  of  this  law,  even  if  the  deeds  have  been 
subsequently  renewed,  will  be  subject  to  the  old  laws 
which  were  in  force  at  the  time  of  the  debt ;  the  pro- 
cedure that  will  be  taken  concerning  immovables  on 
their  account  will  be  in  accordance  with  the  said  former 
laws. 


Date  of  Imperial  Irade — 

15.  Sheval,  1288. 


15.  December,  1287. 

Provisions       With    reference    to    the   manner  of  preparing  the 
deeds. 1   '"  documents  required  to  be  issued  to  purchasers  of  im- 
movable  property   belonging   to  debtors   refusing  to 
sell,  and  to  be  sold  under  the  "  Law  on   the  sale  of 


Sale  of  Immovable  Property  for  Debt.     223 

immovable  property  for  debts,"  His  Majesty  the 
Sultan  has  been  graciously  pleased  to  sanction  by  his 
Imperial  Mrudi',  granted  on  request  made  by  decision 
of  the  Council  of  State,  that  henceforth  when,  under 
a  judgment  of  the  Court,  the  executive  authorities 
proceed,  according  to  the  rule  (in  that  behalf)  to  the 
sale  of  any  "  Mulk "  found  in  the  possession  of  a 
debtor  after  the  precautionary  conditions  'contained  in 
clauses  7,  8,  9,  of  the  said  law  have  been  fulfilled,  and 
al'ter  the  purchaser  has  been  settled  on,  a  Mazbata  of 
sale  shall  be  drawn  up  by  the  Court  to  serve  as 
original  and  to  be  kept  in  the  Court,  and  the  necessary  Prepara- 
"  Sheri "  title-deeds  and  documents,  as  also  the  legal  titk-deeds. 
instruments  showing  possession,  shall  be  prepared  in 
acccordance  with  it  (Mazbata)  and  given  to  the 
purchasers. 

It  is  decreed  (by  that  Irade)  that  the  issuing  of  Law  to  he 
instructions  to  this  effect  to  all  the  Courts  found  in  the 
Capital  should  be  entrusted  to  your  Excellency,  and 
that  the  provincial  authorities  should  also  be  directed 
to  conform  their  acts  and  proceedings  to  this  decision. 
A  letter  to  that  effect  has  been  written  to  the  necessary 
civil  authorities,  and  notice  has  been  given  by  a 
Vezirial  letter,  dated  25.  Zil  Kade,  1288  (24.  January 
1287),  that  the  necessary  steps  in  the  matter  will  be 
taken,  conformably  with  the  high  purport  of  His 
Majesty's  said  Imperial  Irade,  by  the  High  Court  of 
Justice  also. 


224  The  Ottoman  Land  Code. 


• 


XXIII.  LAW  CONCERNING  MAHLUL 
VAKF  HOUSES. 


Sale  of  1.  Entirely  Mahlul  houses  will  be  put  up  to  public 

housefby  aucti°n  according  to  the  established  system  (1).  They 
auction.  wju  not  be  considered  as  adjudicated,  and  the  leasing 
will  not  be  carried  out,  unless  notices  stating  the  time 
fixed  for  the  auction  have  been  published  in  the  press  ? 
and  by  special  hand  sheets,  and  until  the  period  fixed 
for  the  auction  has  elapsed,  and  all  other  bidders  have 
withdrawn. 

Purchase         2.  If  a  co-proprietor  wishes  to  take  the  Mahlul  (2) 
house  bG  m  snare  °f  a  participated  house  the  modified  procedure 


-  special  to  co-proprietors  will  be  put  in  force  and  the 
following  deductions  in  the  estimated  value  of  the 
Mahlul  share  will  be  made  in  his  favour  :— 

20%  if  the  Mahlul  share  is  £  or  more  of  the  house. 
30%         „         „        „         from  $  to  £      „         „ 
50%         „         „         „          less  than  £      „ 

3.  If  a  participated  house  belongs  to  many  co-pro- 
prietors, only  one  of  whom  wishes  to  take  the  Mahlul 
share  and  the  others  withdraw,  the  modified  procedure, 


Mahlul  Vakf  Houses.  225 

• 
« 
of  which  the  degrees  are  fixed  in  Art.  2,  will  be  put  Purchase 

in  force  in  favour  of  that  co-proprietor.  If  all  thebvonecol 
co-proprietors  tak.-  the.  Mahlul  share,  the  modified  propri< 
procedure  will  be  put  in  force  in  favour  of  them  all. 
If  all  the  co-proprietors  wish  to  take  the  Mahlul  share 
and  cannot  agree  among  themselves,  without  calling  for 
bidders  from  outside,  it  will  be  put  upt  to  auction 
among  the  co-proprietors  and  conferred* on  the  highest 
bidder  for  the  Muajel  fixed.  If  none  of  the  co-pro- 
prietors wish  to  take  the  Mahlul  share  it  will  be  put 
up  to  auction  in  accordance  with  Art.  1,  among  bidders 
from  outside  and  conferred  without  deduction. 

4.  If  the  co- proprietors  do  not  take  the  Mahlul  share  Lease  or 
for  themselves  but  point  out  and  agree  to  its  being  let  shared 
to   one  of  their   dependents,   the   modified  procedure  dePendant- 
stated  in  Art.  2,  to  be  carried  oufc  concerning  co-pro- 
prietors will  be  can  ied  out  concerning  their  dependents 

also. 

5.  If  the  co-proprietors  do  not  wish   to   take   the  Sale  of 
Mahlul  share,  and  refuse  to  sell  with  it  their  shares 

the  value  of  which  will  be  paid  to  them,  if  the  house 
can  be  divided  the  Mahlul  share  will  be  separated  and 
put  up  to  auction  by  the  Treasury  (Imperial  Evkaf), 
and  leased  to  whomsoever  it  is  adjudicated.  If  the 
house  cannot  be  divided,  the  system  of  possession  by 
turns  (3)  will  be  put  in  force. 

6.  If  the  co-proprietors  of  participated  houses   are 

Q 


226  The  Ottoman  Land  Code. 

Sale  of  not  to  be  found  in  Constantinople  but  are  to  be  found 
participa-  in  the  provinces,  the  value  of  the  Malilul  share  and  the 
)use-  amount  of  the  modified  procedure  special  to  co-pro- 
prietors will  be  notified  by  the  Treasury  (Imperial 
Evkaf)  to  the  local  government  of  the  place  where  the 
co- proprietors  are  to  be  found,  and  the  local  government 
will  inform  the  co-proprietors.  If  they  accept  it  the 
price  will  be  collected  within  three  months  at  most 
from  the  date  of  communication  to  the  co-proprietors 
and  sent  to  the  Treasury  (Imperial  Evkaf)  and  the 
lease  will  be  carried  out.  If  they  withdraw,  as  shown 
in  Art.  5,  if  the  house  can  be  divided  the  Mahlul  share 
will  be  separated  and  put  up  to  action.  If  the  house 
cannot  be  divided  the  system  of  possession  by  turns  | 
will  be  put  in  force. 

Sale  by  7.  If  any  co-proprietor  of  a  participated  house  com- 

when°value  phuns  that  the  value  of  the  Mahlul  share  estimated 
^  ^e  TreasulT  (Imperial  Evkaf)  is  excessive,  it  will 
be  put  up  to  auction  and  offered  to  the  co-proprietor 
for  the  Muajel  attained,  whether  it  be  more  or  less 
than  the  estimated  value.  If  he  abstains  from  taking 
it,  as  stated  in  the  preceding  article,  if  the  house  can 
be  divided  the  Mahlul  share  will  be  separated  and  put 
up  to  auction.  If  the  house  cannot  be  divided  the 
system  of  possession  by  turns  will  be  put  in  force. 

8.  If  a  husband  alienates  to  his  wife   a   share  of 
the   house   belonging  to   him,  and   subsequently,  on 


Mahlul  Vakf  Houses.  227 

• , 

account  of  the  death  of  his  wife,  is  obliged  to  retake  share  as' 
the  same  share  from  Mahlul,  a  deduction  of  half  the  husband 
estimated   value  of  the    said   share  will   be   allowed. and  wit"- 
The  same  course  will  be  followed  if  the  Mahlul  share 
was  alienated  by  wife  to  husband.     But  it  will  not  be 
allowed  in  the  event  of  the  death  of  a  husband  or  wife 
who  has  alienated  to  his  wife  or  her  husband  the  half 
of  a  house  while  being  possessor  of  the  whole.     In  such 
a  case  the  procedure  belonging  to  co-proprietors,  in 
accordance  with   the  rule   stated  in   Art.  2,  will  be 
carried  out. 

CONCLUSION. 

This  Law  will  be  modified  by  Imperial  authority  in 
order   to  facilitate  any  difficulties  that  may  arise  in 
future  in  carrying  out  the  lease  of  the  said  Mahluls. 
Date  of  Imperial  Decree — 

19.  Zilhije,  1288. 
16.  February,  1287. 


Q  2 


The  Ottoman  Land  Code. 


XXIY.  INHERITANCE  OF  MIRIE  AND 
MEVKUFE  LAND  POSSESSED  BY 
TAPU. 


APPENDIX   PUBLISHED   ON   THE   29.  EEBI    UL 
AKHIR,   1289. 

Succession       As  in  the  case  of  a  person  divorcing  his  wife  with     ; 

husi^nd6611  power  to  re-marry  her,  and  before  the  time  allowed  to 

and  wife.  gee  wnether  she  is  pregnant  or  not  is  fioished,  one  of 
the  parties  dies,  or  of  a  man  being  betrothed  to  a 
woman,  and  before  the  consummation  of  marriage  one 
of  the  parties  dies,  either  of  them  who  proves  their 
inheritance  according  to  the  Sheri  having  a  right  of 
succession  in  the  land  left,  if  a  man  who  is  suffering 
from  a  fatal  disease  dies  after  having  divorced  his  wife 

Effect  of  with  a  definitive  divorce,  and  before  the  time  allowed 
to  see  whether  she  is  pregnant  or  not  is  finished,  her 
inheritance  being  established  in  accordance  with  the 
Sheii,  she  has  a  right  of  succession  in  his  land. 

NOTE. — In  accordance  with  the  Imperial  Trade  communicated  by 
Vezirial  letter,  if  by  the  Sheri  the  luife  cannot  be  an  heir,  she  cannot 
have  the  right  of  inheritance. 


XXY.  CONCERNING  TITLE-DEEDS 
ISSUED  BY  THE  DEFTER  KHAKANI 
FOR  SIMPLE  "EMLAK." 


Law  concerning  the  delivery  of  titles  in  a  regular  issue  of 
manner  for  simple  "  Emlak  "  in  the  towns,  villages,  and  for  EmTak 
Nahies  of  the  Imperial  Dominions,  that  is  to  say,  for 
the  site,  and  buildings  and  trees  thereon,  which  are 
Mulk,    houses,  shops,   vineyards,   gardens,   and   other 
property,   and  for  the   "Emlak"   on   Mukata   Arazi 
Mevkufe  and  Arazi  Mirie  paying  equivalent  of  tithes, 
that  is    to    say,    to    the    owners    of  the    buildings, 
vineyards,  and  trees. 

PREFACE. 

1.  New  printed  title-deeds  with  the  Imperial  Cypher  Printed 
at  the  top  will  be  given  for  all  "Emlak"  in  the  towns,  ^rleaneeds 
villages,  and  Nahies,  and  henceforward  the  possession  Emlak- 
of  "Emlak"  without  title-deed  is  prohibited. 

2.  The  new  title-deeds  are  of  two  kinds,  the  one  for  Two  kinds 
simple  "Emlak"  and  the  other  is  special  for  places  ofdeeds' 


The  Ottoman  Land  Code. 


where  the  ground  is  Mukata  and  the  buildings  or  trees 
thereon  Mulk. 

staff  for  3.  The  execution  of  the  Emlak  procedure  is  referred 
busings.  to  tne  Defter  Khakani  officials.  In  every  Sanjak 
there  will  be  a  special  clerk  under  the  Defter  Khakani 
official  for  IJmlak  work,  and  in  every  Kaza  in 
company  with  the*  Tapu  clerk  there  will  be  a  clerk  as 
his  representative  with  the  title  of  Ernlak  Clerk,  there 
will  also  be  the  assistants  in  accordance  with  their 
requirements. 

Office.  4.  There  will  be  a  special  room  in  the  Defter  Khane 

as  the  Centre  for  the  Emlak  registration  proceedings. 


CHAPTER  I. 

CONCERNING     THE     MODE    OF    ISSUE    OF    NEW     TITLE-DEEDS 
FOB    "EMLAK." 


5.  Commencing  at  the  Centre  the  -Emlak  Clerk  of  Mode  of 
every  Kaza  will  go  round  all  the  towns,  and  subse-  new  titie- 
quently  the  villages  and  Nuhies  iu  his  Kaza,  nnd  carry  ° 
out  the  inspection  (Yoklama)  of  the  existing  "  Enilak." 
He  will  take  as  the  basis  of  his  inspection  the  register 
of  the  places  of  which  the  registration  has  been  already 
*  carried  out.  Thus  the  Emlak  Clerk,  together  with  a 
member  of  the  Liva  or  Kaza  Mejlis  Idare  who  has  know- 
ledge in  such  matters  and  the  Tahrir  Memour,  in  the 
presence  of  the  Imam,  Mukhtar  and  Council  of  Elders 
of  the  quarter  in  which  the  "Enilak"  is,  will  register  Registra- 
the  "  Emlak  "  and  prepare  the  Yoklama  Registers  in 
accordance  with  the  specimen,  and  he  will  examine  the 
Hujets  and  other  title-deeds  that  will  be  shown  by  the 
owners  of  (i  Emlak."  The  mode  of  possession  of  those 
who  have  no  Hujet  or  title-deed  being  also  a  reason 
for  "  Mulk,"  he  will  inquire  whether  it  is  based  on  the 
support  of  the  law  and  make  a  note  in  the  column  for 
remarks.  A  mark  with  a  stamp  will  be  made  on  the 
Hujets,  &c.y  in  the  hands  of  owners  of  "  Emlak  "  skow- 
ing  that  the  Yoklama  has  been  carried  out,  and  new 
title-deeds  given. 


232  The  Ottoman  Land  Code. 

: 

Yoklama.         It  is  decided  that  without  the  Yoklama  of  "  Emlak  " 

in  the  towns  being  carried  out  and  completed,  the  Yok- 
lama of  villages  and  Nahies  will  not  be  commenced. 

Making  of  6.  On  the  Yoklama  Kegister  being  prepared  as 
Register!  above,  and  after  having  been  certified  with  the  seal 
of  the  Yoklama  Commission,  it  will  be  given  to  the 
Mejlis  Idare,  and  it -will  be  there  read  in  the  presence 
of  the  Naib  of  the  town.  If  the  Mejlis  consider  it 
necessary  that  further  inquiries  concerning  the  mode 
of  possession  of  a  "  Mnlk  "  should  be  carried  out,  all  the 
necessary  inquiries  will  again  be  carried  out  in  the 
presence  of  the  Naib,  and  the  Yoklama  Kegister  will  be 
scaled  and  certified  by  the  Mejlis  Idare. 

But  it  will  not  be  permitted  for  a  register  to  be  kept 
for  more  than  one  month  in  the  Mejlis  Idare.  In  case 
there  appears  in  it  certain  doubtful  "  Emlak  "  and  the 
inquiries  require  more  than  one  month,  these  will  at 
once  be  separated  in  order  that  the  inquiries  may  be 
carried  out,  and  the  Yoklama  Kegister  will  be  sealed 
and  certified  by  the  Mejlis  Idare  during  one  month  at 
most. 

Temporary  7.  Temporary  certificates  will  be  prepared  in  ac- 
cates."  cordance  with  the  Yoklama  Kegister  which  has  been 
certified  in  the  manner  stated,  and  after  having  been 
sealed  at  the  Head -Quarters  of  the  Liva  by  the  Naib, 
Muhasebeji,  Defter  Khakani  official,  and  Treasurer, 
and  at  the  Head-Quarters  of  a  Kaza  by  the  Kamaikan, 


Title-Deeds  for  "  Mulkr  233 

_  •    _^__^__________^^_^______^^___________^^_____^_^^_ 

Nail),  Tapu  Clerk  and  Treasurer,  they  will  be  delivered 

to  their  owners. 

» 

8.  The  Yoklama  Register  of  every  Kaza  will  be  Separate 
prepared  separately  for  simple  "  Emlak  "  and  for  Registers 
"  Kmlak  "  which  is  Mukata,  and  a  copy  of  each,  to-  J°nrdEmlak 


Aether  with  the  revenue,  will  be  sent  with  a  Mazbata 

Emlak. 

to  the  Head-Quarters  of  the  Liva,  and  from  there  the 
revenue  together  with  the  summary  that  will  be  pre- 
pared in  accordance  with  the  specimen  will  be  sent  to 
the  Defter  Khane.  The  original  copies  will  be  kept 
in  tlieir  respective  localities. 

9.  The  title-deeds  with  the  Imperial  Cypher  pre-  Forward- 
fc    pared  in  accordance  with  the  registers  received,  will  be  feed's 

sent  from  the  Defter  Khane  to  the  Defter  Khakani 
officials,  who  will  cause  them  to  be  delivered  to  their 
owners  on  restitution  of  the  temporary  certificates. 

10.  Besides  three  piastres  cost  of  paper,  and  one  Yoklama 
piastre  clerk's  fee,  for  every  new  title-deed  there  will 

be  taken  once  the  following  Yoklama  fees  :  — 

On  "Emlak  "  valued  from  5,000  to  10,000  piastres, 

5  piastre*  ;  for  every  10,000  in  excess  5  piastres. 

On  "Emlak  "  valued  at  100,000  piastres,  50  piastres. 

On  "  Emlak  "  valued  at  over  100,000  piastres,  100 

piastres. 

Nothing  more  than  the  cost  of  paper  and  clerk's  fee 
will   be   taken   on    "Emlak"    of  a   less   value  than 
*  5,000  piastres. 


234  The  Ottoman  Land  Code. 


CHAPTER  II. 

CONCERNING  '  TH,E  PROCEDUKE  TO  BE  FOLLOWED  IN 
CASES  OF  SALE,  PURCHASE,  MORTGAGE  (TERHIN), 
INHERITANCE,  GIFT,  AND  BEQUEATHAL  OF  "  EMLAK." 

Mode  of          11.  In  sales  of  "  Emlak,"  the  seller  will  in  the  first 

Kmiak        place  get  a  certificate  from  the  Imam  and  Mukhtar  of 

his  quarter,  stating  that  he  is  alive  and  the  proprietor 

of  the  "Emlak,"  and   if  there  is  a  Tahrir  Memour    ' 

after  having  got  a  Kochan  (Sergi)  from  him  also,  he 

will  apply  to  the  Mejlis  Idare  of  the  place  in  which  the 

"  Mulk  "  is,  and  a  deposition  that  the  "  Mulk  "  has  been 

sold  by  a  lawful  true  irrevocable  sale   will  be  made 

by  the  seller  and  buyer,  personally  or  by  their  lawful 

agents,  at  the  said  Majlis,  in  the  presence  of  the  Naib 

and  Defter  Khakani  or  Tapu  Clerk,  and  on  acceptance 

Registra-    by  both  parties  the  matter  will  be  registered  in  a  spe- 

tion-          cial  register,  and  certified,  and  sealed  by  the  Mejlis. 

If  the  payment  of  the  whole  or  part  of  the  sale  price 
is  postponed,  the  Mejlis  will  cause  it  to  be  bound  by  a 
deed,  and  this  kind  of  promissory  note  (Dein  Seued) 
will  also  be  sealed  and  certified  by  the  Mejlis. 

9 

12.  Sale  fees  at  the  rate  of  ten  piastres  per  mille 


Title-Deeds  for  "Mutt"  235 

n  —  _  —  _  _ 

rding  to  the  price  of  sale,  three  piastres'  cost  of  Fees. 
paper,  and  tone  piastre  clerk's  fee  will  be  taken  from 
the  buyer  and   paid  into  the  Treasury.      A  printed 
temporary  certificate  will  be    prepared   according  to  Temporary 
specimen   showing  the  circumstance  of  the  sale,  and  ce 
sealed   in  accordance  with  Art.    7  and  given   to  the 
purchaser.       If  there   is    a  new    title-deed    for    the 
"  Mulk  "  sold,  nothing  will  be  taken  for  "the  temporary 
certificate  except  the  cost  of  paper  and  clerk's   fee. 
If  there  is  none,  the  special  fees  in  accordance  with  Special 
Art.  10  will  also  be  taken  from  the  seller. 


13.  When  the  owner  of  "  Emlak  "  dies  the  procedure  Procedure 
will  be  carried  out  by  the  local  Mejlis  Idare  on  the 


Tahrir  Kochan  (Sergi)  that  will  be  taken  in  accordance  to  Emlak- 
with  the  inheritance  register  (Defter  Kasam)  if  it  has 
been  made,  and  if  there  is  no  inheritance  register  in 
accordance  with  the  division  statement,  signed  and 
sealed  by  the  Sheri  authorities,  on  the  certificate  of  the 
Imam  and  Mukhtar  of  the  quarter,  showing  how  many 
heirs  there  are,  and  after  having  been  registered,  sealed 
and  certified  in  the  special  register  kept  in  accordance 
with  Art.  11,  5  per  thousand  inheritance  fees,  3  piastres 
cost  of  paper  and  1  piastre  clerk's  fee  will  be  taken  and 
paid  to  the  Treasury,  and  the  temporary  certificates 
will  be  delivered  to  the  heirs. 

9  1-i.  Sale  and  inheritance  fees  will  be  calculated  and  Valuation. 
taken  on  the  total  value  of  simple  "  Emlak,"  and  only 


236  The  Ottoman  Land  Code. 

— : — * 

on  the  value  of  the  trees  or  buildings  which  are  Mulk 
of  those  which  are  Mukata.  ( 

Sale  of  15.  The  "Emlak"  of  those  who  die  without  heirs  or 

aSonby  testament  will  be  sold  by  auction  to  the  candidate, 
like  Mahlul  Arazi  Mirie,  and  the  price  entered  in  the 
Eeceipts  Register,  and  sent  to  the  Defter  Khane. 

Mode  of  16.  In  mortgage  (Terhin)  proceedings  the  certificate 
mortgage,  of  the  quarter  in  which  the  "  Mulk "  about  to  be 
mortgaged  (Kehn)  is  situate,  the  Tahrir  Kochan  (Sergi), 
the  promissory  note  (Dein  Sened)  written  on  stamped 
paper,  and  the  title-deed  of  the  property  about  to  be 
mortgaged  (Kehn)  will  be  taken  to  the  local  Defter 
Khakani  official  or  Tapu  clerk,  who  will  carry  out  the 
following  procedure.  A  printed  counterfoil  paper 
special  to  mortgage  (Terhin)  will  be  filled  up  in  the 
presence  of  the  mortgagor  (Kahin)  and  mortgagee 
(Murtehin)  or  their  lawful  agents,  sealed  by  the 
Defter  Khakani  official  or  Tapu  clerk  and  Treasurer, 
and  on  being  separated  from  the  foil  it  will  be  de- 
livered to  the  creditor  with  the  title-deed  and  pro- 
missory note :  3  piastres'  cost  of  paper,  1  piastre  clerk's 
fee,  and  a  mortgage  (Rehn)  fee  at  the  rate  of  1  piastre 
per  mille  on  the  amount  of  the  debt  will  be  taken. 
On  cancellation  the  same  fees  will  be  taken,  and  the 
promissory  note  and  title-deed  returned  to  the  owner. 
The  mortgage  (Behn)  and  cancellation  fees  will  be  pai$ 
into  the  Treasury  and  sent  to  the  Capital  of  the  Liva 


Title-Deeds  for  "  Mulk."  237 

with  the  receipts  registers  that  will  be  prepared  every  Morteaee 
month,  and  there  they  will  be  entered  in  the  summary  ° 

ter  ancl  sent  to  the  Defter  Khane.  The  procedure 
for  mortgage  (Bei  bil  vefa)  and  mortgage  (Bei  bil 
Istiglal)  will  be  carried  out  in  the  explained  way  also. 


17.  Without  a  Sheri  Ham  for  "  Emlak  T  given  or  sheri  Ham 
bequeathed  the  legal   procedure  will  not  be  carried  es 
out. 


18.  The  title-deeds  given  for  "  Emlak  "  in  accord-  Effect  of 
ance  with  the  above,  being  official  title-deeds,  they  will 

be  respected  and  acted  upon  in  all  courts  and  councils. 

19.  Actions  for  mortgage  (Rehn),  conditions,  rnort-  Action 


gage  (Yefa),  and   mortgage   (Istiglal),  which  are  not  " 


stated  in  the  deed,  will  not  be  heard.  Thus,  if  the  srounds- 
seller  definitely  sells  a  "  Mulk,"  and  has  given  to  the 
purchaser  a  deed  of  sale  in  accordance  with  the 
custom,  says  that  he  gave  it  in  mortgage  (Rehn),  or 
by  way  of  mortgage  (Yefa),  or  (Istiglal),  or  on  certain 
conditions,  and  takes  action,  it  will  not  be  heard. 

CONCLUSION. 

20.  The   clerk's   fee   belongs  to  the  district  Tapu  Fees. 
clerks ;  18  %  will  be  deducted  from  the  Yoklama  fees, 
of  which  10  %  belongs  to  the  Emlak  clerks,  4  %  to  the 
collector?,  and  4  %   to   the  Defter  Khakani  officials ; 


258  The  Ottoman  Land  Code. 

6  %  will  be  deducted  from  the  permanent  receipts,  ol 
which  2  %  belongs  to  the  Defter  Khakani  official,  and 
4  %  to  the  Emlak  clerk. 

Division  of  21.  Of  the  40  piastres  cost  of  writing  that  will  be 
writing,  paid  (to  the  Yoklama  clerk)  for  filling  each  book  of 
200  temporary  certificates  27  will  be  paid  from  the 
fees  of  the*  Emlak  clerk  and  13  from  those  of  the 
Defter  Khakani  official,  and  the  details  of  the  work 
will  be  carried  out  according  to  the  Tapu  system. 

inspection       22.  Matters  regarding  the  inspection  and  permanent 
tratioifof    procedure    of    "Ernlak,"    and    the    preparation     and 
Emlak.       sending  of  registers  and  summaries,  will  be  carried  out  4, 
in  accordance  with  the  provisions  -  of  the  Arazi  Mirie 
^Regulations  and  Instructions  which  are  not  contrary 
to  this  law. 

28.  Eejeb,  1291. 
28.  August,  1290! 


• 


(     239     ) 


XXVI.  APPENDIX  TO  ART.  41  OF 
THE  IMPERIAL  LAXD  LAW. 


And  if  during  this  five  years  the  partner  dies,  his  Right  of 
heirs  having  the  right  to  inheritance  have  the  right  deathUof°n 
and    the   power  to  take   the    land    in  the    explained  Partner 

within  five 

method  from  the  alienee.      If  the   alienee  dies,  the  years. 
partner   has    the    right   and   the   power   to   take  the 
land    in    the     explained    method     from     the    heirs 
having  the  right   to  inheritance  of  the   alienee ;  and 
if  the  partner  and  the  alienee  die  at  the  same  time, 
the   heirs    having    the  right    to    inheritance    of  the 
partner  have   the  right   and  the  power  to  take  the  See  p.  22. 
land  in  the  explained  method  from  the  heirs  having 
the  right  to  inheritance  of  the  alienee. 

19.  Shaban,  1291. 


18.  September,  1291. 


240  The  Ottoman  Land  Code. 


XXVII.  APPENDIX  TO  AET.  108  OF 
THE  LAND  LAW. 


Forfeiture  The  land  of  a  murdered  person  is  not  transmitted  by 
inheritance  to  the  accomplices  of  the  murderer,  and 
likewise  the  accomplice  of  the  murderer  cannot  have  a 
right  to  Tapu  in  the  land  of  the  murdered  person. 

28.  Eebi  ul  Akhir,  1292. 
22.  May,  1291. 


XXVIII.  APPENDIX  TO  ART.  6  OF  THE 
TAPU  LAW. 


With  the  exception  of  Arazi   and  Evkaf  officials,  Reward  to 
\\hoever   gives  proved  information  that  the   price   of 
sale   of  Arazi   Mirie  and    Mevkufe    and    Musakafat  ce*led 

value. 

Mevkufe  and  simple  "  Emlak  "  alienated  and  sold  has 
been  understated,  double  the  alienation  fees  on  the 
amount  understated  shall  be  taken  from  the  seller 
and  purchaser  in  two  equal  shares,  and  one-half  paid 
into  the  Treasury  and  the  other  half  given  to  the 
informer. 

24.  Jeinazi  ul  Akhir,  1292. 
14.  July,  1291 . 


242  The  Ottoman  Land  Code. 


XXIX.    ARTICLE  TO  TAKE  THE  PLACE 
OF   ART.    20    OF  THE  TAPU  LAW. 


Reward  to  With  the  exception  of  Arazi  and  Evkaf  officials, 
^tcMxm-  wnoever  gives  information  of  concealed  Arazi  Mirie 
and  Mevkufe  and  Musakafat  Mevkufe  and  simple 
"  Emlak,"  the  Mahlulship  of  which  has  not  been  heard 
direct  by  the  Government,  shall  be  given  a  reward  of 
10  %  from  its  Bedel  Muajel  after  it  has  been  conferred 
by  auction  by  the  Mejlis  on  the  candidate. 

24.  Jemazi  ul  Akhir,  1292. 
14.  July,  1291. 


243 


XXX.  LAW  CONCERNING  MUSAKA- 
FAT  AND  MUSTEGHILLAT  MEVKUFE 
HELD  IN  IJARETEIX.  * 


1.  All  Musakafat  and  MusteghilLit  Mevkuie  which  Rules  of 
is  held  in  Ijaretein  will  be  inherited  :- 


i.  As  before,  by  the   male   and  female   children  ^  and,  .. 

'       J    m  Musteghil- 

equally,  or,  if  there  is  only  one  male  or  female  child,  i»t  Mev- 

,        .  ,    *  .         ,  kufe  held 

by  that  one  only.  in  ijare- 

ii.  If  there  are  no  children,  by  the  grandchildren,  tem> 
that  is  to  say,  by  the  child  ren  of  the  male  and  female 
children  likewise  equally,  or  if  there  is  only  one,  by 
that  one  only. 

iii.  By  the  parents. 

iv.  By  the  brothers  and  sisters  gerrnan. 

v.  By  the  brothers  and  sisters  consanguineous. 

vi.  By  the  brothers  and  sisters  uterine. 

vii.  By  the  husband  or  wife.  The  share  belong- 
ing to  both,  as  above,  will  be  inherited  by  one  if 
only  one  of  the  parents  is  alive.  This  rule  is  also 
applicable  to  brothers  and  sisters. 

2.  When  an  heir  of  the  first  degree  of  the  seven 

R  2 


244  The  Ottoman  Land  Code. 

I 

Preference  degrees   of   possessors    of    the    right    to    inheritance 

flrst  mentioned  above  is  alive,  an  heir  of  the  second  degree 

e«ree-       cannot  have  the  right  to  inheritance.     For  instance, 

when  there  are  children,  the  grandchildren,  and  when 

there  are  grandchildren  the  parents  have  no  right  to 

But  chil-    inheritance.     But  the  children  of  the  male  and  female 

deceased6    children  who  die  during  the  lifetime  of  their  father 

parent's      an(j  mother  take  -the  place  of  the  children  and  inherit 

share. 

from  their  grandfather  and  grandmother  the  share 
that  would  be  inherited  by  their  father  and  mother. 
Thus,  the  person  who  dies  during  the  lifetime  of  his 
father  and  mother  being  considered  alive,  the  share 
that  he  would  inherit  from  his  father  and  mother  will 
be  inherited  in  equnl  shares  by  his  male  and  female  * 
children,  or  the  whole  by  one,  if  there  is  only  one 
Husband  or  child.  The  husband  and  wife  will  each  inherit  a 
a  fourth,  fourth  share  of  the  Musakafat  and  Musteghillat  that 
would  be  inherited  by  the  heirs  who  are  possessors  of 
the  right  to  inheritance  of  the  four  degrees  from  the 
parents  to  the  brother  and  sister  uterine.  If  there  are 
no  heirs  of  the  sixth  degree,  brothers  and  sisters 
uterine,  the  whole  of  the  Musakafat  and  Musteghillat 
will  be  inherited  by  the  husband  or  wife.  If  there  is 
no  husband  or  wife  it  becomes  Mahlul. 

i 

Mortgage.       3.  The  system  of  mortgage  (Feragh  bil  vefa)  which 
is  in  force  for  securing  debt  will  be  in  force  as  before, 
and  the  conditions  and  procedure  detailing  this  system    t 
will  be  fixed  by  special  laws. 


Law. Concerning  I jaretein^  Musakafat^  &c.  245 


-1.  In  compensation  for  the  lo^  of  AFahluls  of  Yak  Is  i 
in    consequence   of  the  extension    of  inheritance   as  ^l1,.]  ' 

aln»v«',  an  annual  rent  (liaie  Muciele)  of  one  per  1000  MueJele> 
v  J  j      /  Up0n  ex_ 

\vill  be  fixed  on  the  registered  values  of  Musakafat  and  tension  of 
Musteghillat  which  are  registered  in  the  new  registers,  tauce. 
and  the  ancient  rents  of  these  will  be  abolished.     The 
place   of  each  Yakf  in  Musakafat  and  Musteghillat, 
which  are  mixed  with  numerous  Yakfs,  will  be  surveyed 
and  delimited,  and  a  separate  rent  for  each  Yakf  will  Separate 
be  fixed  on  whatever  tails  to  the  share  of  each  Vakf  on  ^ch  Vakf. 
the  registered  value  in  the  registers  according  to  its 
present    form.      If    a    Musakafat    and    Musteghillat 
Mevkufe  is  mixed  with  a  fixed  rent  (Mukata)  Yakf  or 
pure  Mulk,  a  rent  of  one  per  1000  will  be  fixed  only  in 
proportion  to  the  amount  of  the  share  which  belongs 
to  the  Ijaretein  portion  of  the  value  which  is  assessed 
on  the  whole  in  the  register. 

5.  The  following  fees  will  be  taken  on  the  inheritance  Succession 
of  Musakafat  and  Musteghillat  Mevkufe  in  the  explained  duties' 
way : — 

15  %0  as  before  when  inherited  by  the  children. 

30  %o  when  inherited  by  the  grandchildren. 

40  %o  when  inherited  by  the  parents. 

50  %0  when  inherited  by  the  brothers  and  sisters, 
germA,  consanguineous,  and  uterine,  and  the  husband 
and  wife.  A  fee  of  30  %0  as  before  will  be  taken  on  a 
definite  alienation,  and  in  cases  of  mortgage  (Feragh 
bil  vefa),  mortgage  (Istiglal),  cancellation,  and  release 
a  fee  of  5  %0  will  be  taken. 


246  The  Ottoman  Land  Code. 


Clerk  and  6.  Oue-fourtli  of  the  fees  that  will  be  taken  on  the 
take  a°  inheritance  by  children  of  Musakafat  and  Mucteghillat 
fourth  of  Mevkufe  as  above  will  belong  to  the  Clerk  and  Jabi  of 

the  fees  or 

duties.  the  Vakfs  as  before  ;  but  all  the  fees  that  will  be  taken 
on  the  inheritance  by  heirs  other  than  children  will  be 
paid  to  the  Treasury  and  entered  as  revenue  of  the 
Vakfs. 


Same  rent       7.  The  provisions  stated  above  will  also  be  carried 

to  be  paid 
for  Gedik 
hold  in 
Ijaretein. 


for  GedTk's  out  in  Gediks  which  are  possessed  in  Ijaretein.     Thus 
hdd  m       separate  rents  of  one  per  1000  will  be  fixed  accord- 


ing to  the  values  registered  in  the  register  on  the 
Gedik  as  well  as  on  the  place  called  Mulk,  on  which 
they  are  established.  » 

Valuation        8.  It  will  be  sufficient  to  collect  the  amount  of  the 
"     °f    rent  on  the  value  that  will  be  reassessed  on  the  sites 


buildings.  on]y  of  Musakafat  and  Mnsteghillat,  which  has  been 
burnt  or  destroyed  after  the  rent  (Ijare  Muejele)  has 
been  fixed  in  accordance  with  the  foregoing  rules,  the 
amount  which  falls  to  the  share  of  the  burnt  or 
destroyed  building  will  be  deducted. 

Vacation  9.  If,  after  the  rent  has  been  fixed  in  accordance 
new  or  with  the  new  rules,  buildings  are  built  on  sites  on  which 
^e  buildings  have  been  burnt  or  destroyed,  and  on 
sites  on  which  there  were  no  buildings  originally,  they 
will  be  reassessed  in  their  present  form,  and  a  rent  of 
one  per  1000  will  be  fixer!  on  the  value  estimated  by  \ 
persons  of  knowledge. 


Lais  Concerning  Ijarctchi,  Musakafat,  &c.  247 

10.  After  the  rent  of  Musakafat  and  Musteghillat  as  Val'' 

to  be  made 

above  lias  IMM-II  tixed  in  accordance  with  the  new  rule  ever, 
during  a  period  of  five  years,  no  increase  or  decrease  in  }t 
the  amount  of  the  rent   assigned  will    be   made   on 
account  of  the  advance  or  decline  of  the  value  of  the 
property,  but  once  every  five  years  the  value  of  the 
said  Musakatat  and  Musteghillat  will  be  inquired  into, 
and  the  rent  will  be  renewed  or  modified. 

11.  Henceforth  no  marginal  notes  will  be  written  on  J*sue  of 

ne\v  title- 

the  title-deeds  given  in  accordance  with  the  new  system,  deeds. 
In   cases    of  alienation,  inheritance,   separation,  and 
division,  new  title-deeds  will  be  prepared  and  issued ; 
"Cancelled"  will  be   written  on  the  old  title-deeds, 
which  will  be  retained  by  their  owners. 

12.  Musakafat  and  Musteghillat,  of  which  the  site  is  Musa 
a  fixed  rent  (Mukata)  Vakf,  and  the  buildings  and  trees 
Mulk,  will  be  dealt  with  according  to  ancient  custom. 
\Yhen  Musakafat  and  Musteghillat  of  this  kind  is  sold  fi*ed  r<-nt- 
and  bought,  alienated  and  inherited,  the  old  fixed  rent 
(Mukata)  will  be  augumented  to  a  suitable  degree. 

13.  This  law  takes  the  place  of  the  law  published  by  Operation 
Imperial  Decree  on  th^  17.  Muharem,  1284,  concerning  ot 
Musakafat  and  Musteghillat  Mevkufe  which  is  held  in 
Ijaretein,  and  the  law  published  on  the  2.  Zilkade,  1285, 

as  an  appendix  concerning  the  mode  of  execution  of 
the  provisions  of  the  said  law.    It  comes  into  force  from 


248         -•    The  Ottoman  Land  Code. 

the  date  of  promulgation,  but  the  old  rents  will  be 
abolished  from  the  end  of  last  February,  12901  financial 
year,  and  the  new  rents,  fixed  at  the  rate  of  one  per 
1000,  will  be  collected  from  March  this  year,  1291. 

4.  Kejeb,  1292. 


XXXI.  INSTRUCTIONS  CONCERNING 
THE  MODE  OF  CARRYING  0UT  THE 
DECISION  ADOPTED  BY  IMPERIAL 
DECREE  CONCERNING  THE  ISSUE 
OF  TITLE-DEEDS  BY  THE  DEFTER 
KHANE  FOR  ARAZI  MEYKUFE. 


1.  As  before,  title-deeds  will  be  given  by  the  issue  of 
Muhasebejis  of  Evkaf  for  Musakatat  of  which  the 
ground  and  building  is  Yakf,  and  for  the  buildings  only 
of  Yakf  Chiftliks  which  are  possessed  by  Ijaretein,  and 
by  the  Mutevellis  for  Musakafat  and  Mustegbillat  which 
are  attached  to  exempted  Yakfs,  in  towns  and  villages. 
Except  these,  that  is  to  say,  for  places  to  which  a  fixed 
ground  rent  (Mukata  Zemin)  is  attached,  Yakf  land 
which  is  titheable  or  pays  a  fixed  equivalent  to  tithe, 
trees  and  vines  of  gardens  and  vineyards  whk-h  are 
Yakf,  within  or  without  towns,  title-deeds  will  be  given 
by  the  Defter  Khane  Khakani,  and  the  sale  and  deposi- 
tions, auction  and  other  procedure  according  to  the  law 
of  Mahluls,  will  be  heard  and  carried  out  in  the  Livas  by 
the  Defter  Khakani  officials,  and  in  the  Kazas  by  the 


250  The  Ottoman  Land  Code. 

Tapu  clerks,  in  the  manner  which  is  ab  antique  in  force 
for  Mirie  and  Evkaf  land. 


Making  of  2.  The  Defter  Khakani  officials,  in  their  own  Livas, 
Jnd^Yokia  w^  ^e^  ^rom  ^e  Muhasebejis  of  Evkaf  a  register  of 
ma  Regis-  the  number  of  villages  of  which  the  Yoklama  system 

ter. 

has  been  formerly  carried  out  through  the  Muhasebejis 
of  Evkaf,  and  of.  the  villages  of  which  the  Yoklama  has 
not  yet  been  made,  and  in  accordance  with  this  register 
they  will  proceed  accoiding  to  established  law  to  carry 
out,  through  the  Kaza  Tapu  clerks,  or  if  these  are  not 
sufficient,  through  the  clerks  they  will  appoint  from 
outside,  the  Yoklama  of  the  villages  of  which  the 
Yoklama  has  not  been  made,  and  they  will  show  in  the 
Yoklama  register  the  Vakf  and  administration  to  which 
the  places  that  are  registered  during  the  Yoklama 
belong,  and  of  what  kind  of  things  the  benefice  is  com- 
posed. These  explanations  will  be  carried  out  in 
accordance  with  the  register  which  they  receive  as  a 
specimen  at  the  time  when  the  handing  over  from  the 
Muhasebejis  of  Evkaf  takes  place. 


Possession       ^.  ^-n  accordance  with  Art.  1  of  the  Instructions  con- 
without      tained  in  the  Destur  concerning  Tabulated  Certificates, 

title-deeds 

unlawful,  the  possession  of  Arazi  Mevkufe  without  title-deed  is 
ab  antiquo  illicit,  and  as  from  the  date  (25.  Kamazan, 
1281,  9.  February,  1289)  of  the  formation  of  the  pro- 
vincial title-deeds  at  the  Imperial  Evkaf  Treasury  the 
possession  by  title-deeds  other  than  those  issued  from 


of  Titlc-Dccds  by  the  Defter,  &c.  251 
• 
i 

lluit  date  up  to  now  bv  the  said  Ministry  leaving  the  Possession 

J  without 

Imperial   4'yplnT    at    top,    issued    by    Mutevellis    and  title-deeds 

:its  before  the  said  date,  bearing  known  seals,  and 
written  on  paper  without  the  Imperial  Cypher  as  not 
to  be  roistered  at  Constantinople  will  not  be  p<  r- 
.  the  title-deeds  of  those  who  possess  this  kind 


of  title-deed   will   be  changed   on   taking   only   four  Issue  of 

new  form 

piastres  each,  cost  of  paper  and  clerk's  fee,  and  newoftitie- 
Vakf  title-deeds  with  the  Imperial  Cypher  at  top 
will  be  issued.  If  a  title-deed  without  the  Imperial 
Cypher  issued  after  the  said  date  appears,  and  the 
seal  or  signature  of  this  title-deed  is  known  on 
taking  the  clerk's  fee  and  cost  of  paper,  it  will  be 
changed  for  a  title-deed  bearing  the  Imperial  Cypher, 
and  as  this  kind  of  title-deed  is  contrary  to  law  and 
issued  with  the  intention  of  embezzling  the  aliena- 
tion or  inheritance  fees  paid,  it  will  be  necessary  to 
claim  a  fee  of  5  %  according  to  law  from  the  person  who 
issued  the  title-deed  at  the  time.  If  the  title-deeds 
without  the  Imperial  Cypher  issued  after  the  said  date 
are  unknown,  the  Evkaf  Mudirs  will  inquire  into  the 
prescriptive  right  (Hak  Karar)  of  the  owners  as  ex- 


plained  in  the  law;  if  it  is  established  the  procedure  tbe*8 
according  to  law  will  be  carried  out,  and  on  a  fee  of  5  %  Proved- 
on  the  estimated  value,  with  clerk's  fee  and  cost  of 
paper  being  taken,  the  title-deed  with  Imperial  Cypher 
will  be  issued  ;  if  it  is  not  established  it  will  be  treated 
as  concealed  land.    For  the  purpose  of  carrying  out  this 
procedure  it  is  necessary  for  a  Mazbnta  to  be  made  by 


252  The  Ottoman  Land  Code. 

—  -      ! 

Loss  of       the  Mejlis.     A  new  title-deed  will  be  issued  to  persons 

title-deeds 

who  have  lost  their  title-deed  with  the  Imperial  Cypher 
on  the  registers  being  examined,  and  the  clerk's  fee  and 
cost  of  paper  being  taken. 

Duty  upon  4.  On  the  alienation  and  inheritance  of  Arazi 
or  devolu-  Mevkufe  a  fee  of  5  %  will  be  taken,  and  if  it  is  mixed 
Metkufd  witn  "  Emlak  "  the  procedure  according  to  its  special 
law  will  be  carried  out  for  the  "Emlak."  Though 
the  mortgage  (Istiglal)  of  Arazi  Mevkufe  will  be 
carried  out  exactly  according  to  the  law  which  is  in 
force  for  Arazi  Mirie,  when  these  are  mortgaged 
(Istiglal)  or  cancelled  in  accordance  with  the  Evkaf 
law  a  fee  of  2J  %  will  be  taken.  As  shown  in  the 
specimens  of  the  Emlak  summaries,  the  amount  of 
fees  for  mortgage  (Istiglal)  and  cancellation  that  are 
taken  during  a  month  will  be  shown  separately  in  the 
balance  column  of  the  Kaza  receipts  register  for  that 
month,  and  when  they  are  transferred  to  the  Li\a 
summary  register,  they  will  be  shown  in  the  line  for 
that  Kaza  and  in  the  remarks  column. 

Yoklama;        5.  The  Yoklama  and  permanent  procedure,  and  thf 
procedure1;  receipts  registers   and   summaries   of  Arazi  Mevkuie 


receipts      WQ}  ^e  carrie(j  01]t  in  accordance  with  the  specimen 

registers  ; 

summa-      sent.     There  will  be  inserted  'in  Nos.  1  and  2  of  the 


nes. 


specimens,  under  the  serial  number,  in  the  open  line  of 
the  administration  column,  the  administration  to  which 
the  Yakf  to  which  the  place  belongs  is  attached  ;  in  the  ^ 
line  of  the  Yakf  column  under  it,  the  Vakf  in  which  it 


Giving  of  Title- Deeds  by  the  Defter,  &c.  253 

•  . 

• 

ix    situate;   and    still   under    that,    in    tin?  column    for  Filling-up 

-sible,  the  kind  of  benefices  to  which  meus!" 
that    land    is   Vakf,  in    accordance   with   the   regi-t--r 
n-  -civrd  li-.nn  the  Muhasebeji  of  Evkaf  at  the  time  of 
handing  over. 

6.  The  nature  of  the  receipts  inserted  in  tfie  registers  Nature  and 
\\ill  be  shown  separately  at  the  bottom  >of  the  receipts  receipts.0 
register,  as  shown  in  the  specimen.     The  number  of 
piastres  to  which  the  total  receipts  of  each  Yakf  amount 

will  be  written  in  the  total  column,  and  in  the  line  the 
name  of  the  Vakf  will  also  be  entered. 

7.  Administration,  Yakf,  and  Benefice  columns  having  Entries  in 
been  opened  in  the  temporary  certificates  that  will  be  Certificates 
filled  up  in  order  to  be  given  to  possessors  of  land,  the 
Administration  and  Yakf  to  which  the  land  is  attached, 

and  the  nature  of  the  benefice,  will  be  explained  in 
these,  and  if  the  place  for  which  the  title-deed  will  be 
pven  pays  equivalent  to  tithe,  or  a  fixed  fee,  the 
amount  of  the  equivalent  of  tithes  and  fixed  annual  fee 
that  may  have  accumulated  for  how  many  soever  years 
will  be  collected  and  entered  in  the  special  column,  as 
shown  in  the  specimen. 

8.  The    Kaza    Summary    Eegisters   will    also    be  Kaza  Sum- 
prepared  in  accordance  with  the  system  adopted  for 

Arazi  Mirie,  but,  as  shown  in  the  Kaza  Summary 
Specimen  No.  3,  in  the  column  opened  for  names  of 


254  The  Ottoman  Land  Code. 

Name  of  Vakfs,  the  name  of  the  Vakf  will  be  written,  and  the 
receipts  and  deductions  will  be  written  in  (the  line  of 
the  special  column.  As  the  Yoklama  of  each  town  or 

Making -of  village  is  completed,  the  towns  and  villages  will  be 
separated  from  each  other  on  the  left  of  the  Vakf 
names,  and  drawing  a  parenthetical  line  for  each,  the 
name  of  the  town  or  village  will  be  written  on  the  top. 
The  next  village  being  commenced,  and  continuing  to 
write  them  in  turn,  a  total  will  be  made. 

Liva  sum-       9.  Though  the  surplus  columns  of  the  Liva  summaries 
les>       will  be  appropriated  and  filled  in  exactly  in  accordance 
with  the  instructions  for  Kaza   summaries,  in  accor- 
dance with  Specimen  No.  4,  after  the  10  per  cent.,  ti     ' 
taking  of  which  is  ordered  by  law,  has  been  deducted 
from  all  the  revenue  in  the  Yoklama  summary,  with 
the  exception  of  the  clerk's  fee  and  cost  of  paper,  on 
Payment     paying  it  into  the  Treasury,  on  account  of  the  Evkaf 
ic^per0      through  the  local  Mejlis,  the  receipt  that  will  be  taken 
cent.          from  the  Treasurer  will  be  given  to  the  Muhasebeji  of 
Evkaf,  and  in  its  place  a  certificate  will  be  got  from 
the  said  Muhasebeji,  stating   that  the  amount  of  the 
payment  is  on  hand  in  the  safe.     The  Liva  summary 
will  be  prepared  in  triplicate,  and  sealed  by  the  officials 
who  customarily  seal,  together  with  the  Muhasebeji  of 
Evkaf.     One  copy  will  be  given  to  the  said  Muhasebeji 
to  be  sent  to  the  Imperial  Evkaf  Ministry ;  another 
copy  will  be  attached  to  the  certificate  that  will   b<- 
taken   from   the   said   Muhasebeji,    stating    that   the 


Giving  of  Title- Deeds  by  the  Defter,  &c.  255 

amount  is  on  hand  in  the  safe,  and  together  with  the  Disposal  of 
balance  oA  the  revenue,  that  is,  clerk's  fee  and  cost  of  c"JjegC*fe 
paper,  will  be  sent  direct  to  the  Defter  Khane;    theLivasum- 

mary. 

other  will  be  kept  in  the  local  Defter  Khakani  Office. 

In   accordance  with  Specimen  No.  5  Liva  Summary 

the  summary  of  permanent  revenue  will  be  prepared 

in  the  way  explained,  but  the  clerk's  fee  being  the  clerk's  fee. 

property  of  the  Kaza  Tapu  clerks,  only  the  cost  of 

paper  will   be   sent  with  the  summary,  &c.,  to    the 

Defter  Khakani. 

10.  The  greatest  care  and  attention  should  be  given  Separation 
at  the  time  of  registration  and  inspection  (Yoklama)  Q^™* 
for  the  Arazi  Mevkufe  procedure  not  to  be  mixed  with  Mevkufe 

from  those 

the  Arazi  Mirie  affairs.      As  the  registers  sent  to  the 


"A  f  *     '  ' 

Defter  Khakani  will  be  compared  with  the  Impedal 
records,  if  any  confusion  is  observed  they  will  be 
returned  and  the  officials  held  responsible.  Care  and 
attention  will  always  be  taken  and  paid  for  the  revenue 
of  Arazi  Mevkufe  also  not  to  be  mixed  with  the  revenue 
of  Arazi  Mirie. 

11.  As   the  salaried   clerks  in   company  with   the  Employ- 
Defter    Khakani    officials   are    hardly   sufficient    for  ™£°*& 
Tapu    and    Ernlak   matters,   if  the   supervision   and  cials- 
arranging  of  Evkaf  matters  is  also  referred  to  them, 
in  some  places  where  the  Arazi  Mevkufe  is  extensive 
(he  management  will  be  difficult.     In  Sanjaks  where 
the  Vakfs  are  large,  an  extra  clerk  will  be  employed 
to  look  after  Evkaf  matters  only.     Two  piastres  from 


256  The  Ottoman  Land  Code. 

Remunera-  the  10  %  which  belongs  to  the  Vakf  Yoklama  Clerks, 
ex°t*a°clerk,  ore  piastre  fr°m  tne  ^ees  of  4  %  of  the  Defter  Khakani 
official,  which  are  also  from  the  Yoklama  of  the  Vakf, 
one  piastre  from  the  4  %  which  belongs  to  the  Collector, 
and  two  piastres  from  the  4%  which  belongs  to  the 
Kaza  Tapu  Clerks  from  the  permanent  fees  will  be 
Extra  pay  given  to  this  clerk.  If  the  Chief  Clerk  of  the  Defter 
Khakani  and  h?s  companion  undertake  the  manage- 
ment without  impeding  the  work — and  this  is  possible  t 
— of  the  said  fees  that  would  be  given  in  case  a  clerk 
were  employed  for  Vakf  work,  three-fifths  will-be  given 
to  the  Chief  Clerk  of  the  Defter  Khakani,  and  two-fifths 
to  his  companion,  and  the  supervision  of  Vakf  matters 
will  be  given  to  them. 

* 
CONCLUSION. 

HOW  diffi-  The  purport  of  these  instructions  is  composed  of  \ 
be  settled,  matters  the  explanation  of  which  is  necessary  for  Arazi 
Mevkufe,  as  the  current  work  will  be  carried  out  in 
the  same  way  as  the  procedure  for  Arazi  Mirie,  in  case 
of  doubt  as  to  its  execution  the  Kaza  Tapu  Clerks 
will  ask  for  instructions  from  the  Defter  Khakani 
officials,  and  in  case  of  necessity  the  latter  from  the 
Ministry  of  Defter  Khakani. 

6.  Bejeb,  1292. 
26.  July,  1291. 


(     '57     ) 


XXXII.  SUBSEQUENT  DECISION  STAT- 
ING THAT  THE  SAID  LAW  IS 
NOT  OBLIGATORY,  AND  WILL  BE 
CARRIED  OUT  WHEN  PERSONS 
DESIRE. 


Although  it  was  lately  decided  to  extend  in  a  com- 
pulsory manner  to  the  Mnsakafat  and  Musteghillat 
of  Mulhaka  Yakfs  the  system  of  extension  of  in- 
heritance which  is  in  force  in  an  optional  manner  in 
Musakafat  and  Musteghillat  of  Mazbuta  Yakfs,  but  as 
the  public  benefit  and  satisfaction  have  not  been  attained 
by  such  compulsory  extension,  and  as  it  is  the  wi>h 
of  His  Imperial  Majesty  to  obtain  the  perfect  pleasure 
and  approval  of  all  his  subjects,  and  other  possessors 
of  property,  and  as  forcible  treatment  in  the  rights  of 
possession  of  property  is  contrary  to  the  rules  of  justice. 
from  the  15.  Zilkade,  1291,  2.  December,  1290,  the 
extension  in  a  compulsory  manner  of  this  system 
of  extension  of  inheritance  has  been  abandoned,  and  an 
Imperial  decree  having  been  issued  that  the  applica- 

s 


258  The  Ottoman  Land  Code. 

Law  of  in-  tion  to  Mazbuta  and  Mulhaka  Vakfs  is  optional  to  the 
to  be  per-    owners  of  property  who  desire  it,  and  the  law  having 
missive.      a}go   beea   amended   in   this  manner,   the  matter   is 
published  for  general  information. 

15.  Zilkade,  1292. 


2.  December,  1291. 


259 


XXXIII.  LAW  CONCERNING  LAND. 

1.  Mussulman   and  non-Mussulman  subjects  have  Mussulman 

..  •  p      *TI  i*     «md  non- 

equal  rights  in  receiving  possession  ot  village,  cum-  Mussulman 
vated,  and  Chiftlik  lands  in  the  Empire,  whether  Mirie  JJ^J^J 
or   Vakf,   and   which   are   transferred  by  auction   or  footing- 
alienated  by  individuals;   if  there  are  any  Mirie   or 
Mevkufe  lands  of  which  the  granting  into  the  possession 
-j.  of  non-Mussulman  subjects  has  not  been  carried  out  in 
obedience  to  the  ancient  usage,  such  usage  is  abolished, 
and   the   provisions  of  the  law  will   be  carried  out 
without  distinction. 

2.  The  procedure  in  accordance  with  the  provisions  Procedure 
of  the  Imperial  law  will  be  carried  out  without  distinc- 


tion  regarding  land  and  property  which  Mussulman  aPPhed- 
and  non-Mussulman  subjects  receive  from  each  other. 

3.  Farmers  who  are  cultivators  in  certain  Chiftliks,  Privilege 
and  who  are  Mussulman  or  non-Mussulman  subjects,  farmers!" 
shall  have  preference  rights  at  the   time  when    land 
sold  by  auction  or  alienated  by  private  individuals  is 

being  received. 

7.  Muharem,  1293. 

22.  January,  1291. 

s  2 


260  The  Ottoman  Land  Code. 


XXXIV.  INSTRUCTIONS  SHOWING  THE 
PROCEDURE  TO  BE  FOLLOWED  IN 
THE  ( ISSUE  FROM  THE  DEFTER 
KHANE  OF  TITLE-DEEDS  FOR  MU- 
SAKAFAT  AND  MUSTEGHILLAT 
YAKFIEH  IN  CONSTANTINOPLE 
AND  IN  THE  PROVINCES. 


PROCEDURE  IN  CONSTANTINOPLE. 

ud  Office  1.  The  Title-Deeds  Office  at  the  Imperial  Evkaf 
MillistlT  wil1  be  transferred  to  the  Defter  Khane 
Ministry.  As  in  the  provinces  this  office  will  be 
called  "  The  Defter  Khakani  Office  of  Constantinople," 
all  "  events,"  that  is  to  say,  the  alienation,  inheritance, 
mortgage  (Istiglal),  cancellation  of  mortgage  (Istiglal), 
and  other  proceedings  regarding  every  kind  of  Arazi 
and  Kmlak  in  the  Municipal  Circles  of  Constantinople, 
will  be  supervised  here  in  accordance  with  the  estab- 
lished laws. 

2.  When  the  "  events  "  of  any  kind  of  Arazi  and 
Emlak  are  being  carried  out,  marginal  notes  will  not 


Jssiic  of  Title- Deeds  by  tlic  Defter  Khant.      261 

be  written  en  the  old  title-di-eds.  as  in   the   provinces. 

new  titlft- 

untd  tlio imperial  title-deeds  arc  given:  a  temporary  deeds, 
ceitificate,  in  accordance  with  the  enclose  i  specimen, 
will  be  issued  to  the  owners.  A  note  will  be  made 
against  the  entry  in  the  old  register,  and  a  stamp  with 
the  sentence  "  new  title  deed  issued"  being  put  on  the 
old  title-deed,  it  will  be  returned  to  its  owner. 


3.  Ihe   Defter  Khakani  Ministry  will  prepare  and  Issue  of 

new  title- 

issue,  in  accordance  with  the  tabulated  registers  sent  to  deeds  in  set 
it  by  the  Defter  Khakani  Office  of  Constantinople,  the 
permanent  title-deeds  for  land  and  properties  of  which 
the  "events"  have  been  registered  and  the  temporary 
certificates  issued,  and  the  restitution  of  the  certificates 
issued  temporarily  will  be  demanded.     These  perma- 
nent title-deeds  will  be  issued  in  one  form,  in  accor- 
dance with  the  enclosed  specimen,  for  every  kind  of 
Musakafat  and  Musteghillat  Mevkufe ;  but  the  extension 
of  inheritance  law  will  be  printed  on  the  back  of  those  Inherit- 
issued   in  cases  where  the  inheritance   has   been  ex-  ar 
tended,  and  the  articles  of  law  showing  the  rights  of 
possession  will  be  printed  on  the  back  of  those  issued 

to  foreign  subjects.  Foreign 

subjects. 

4.  The  title-deeds  for*Mazbuta  Vakfs  will  be  issued  Mazbuta 
on  being  sealed  by  the  Defter  Khakani ;  and  the  title-  haka  " 
deeds  for  Mulhaka  Vakfs,  after  having  been  sealed  by 

the  said  Ministry  also,  the  Mutevelis  will  be  summoned 
and  made  to  seal  them  also. 


262  The  Ottoman  Land  Code. 


Separate  5.  New  separate  registers  will  be  kept  for  each  one  of 
the  thirteen  Municipal  Circles  of  Constant  hi  ople,  and 
the  current  events  will  be  entered  in  these  registers. 

Auction          6.  With  the  exception  of  Musakafat,  whether  Mahlul 

certain       or  Ijare  Vahide,  of  which  the  conversion  into  Ijaretein 

is  necessary,  in  Constantinople  and  its  suburbs,  and  of 

places  which   are   not  leased   to    anybody,   and   are 

assigned  to  the  public  ab  antiquo,  and  the  sale  of  which 

is  illegal  by  Sheri  law,  in  the  sale  of  sites  to  which 

there  is  no  objection,  the  auction  will  be  carried  out  by 

the  Imperial  Evkaf  Treasury  in  accordance  with  the 

law,  and  on  its  termination,  after  the  Muajele  has  been 

Kegistra-    received,  the  formalities  of  registration  in  the  name  of 

sale.          the  person  to  whom  it   is  to   be   transferred  will  be 

carried  out  by  the  Defter  Khane  on  notification  from 

the  said  Ministry  enclosed  in  the  list,  and  the  assignat 

shown  by  the  owner  will  be  taken,  and  in  its  place  the 

Title-deed,  title-deed  prepared  will  be  delivered. 


Payment  of     7.  In   order  that  the  salaries  and  expenses  of  the 

salariesai 
expenses. 


salariesand  Title_Deeds  Office>  transferred  from  the  Imperial  Evkaf 


Office  to  the  Imperial  Defter  Khane,  may  be  paid  by 
the  Defter  Khakani  Treasury,  the  three  piastres*  cost  of 
paper  and  one  piastre  clerk's  fee  taken  on  title-deeds 
for  Arazi  Mevkufe  and  Musakafat  Vakfie  will  wholly 
belong  to  the  Defter  Khane. 

8.  All  the  revenue  to  be  collected   by  the  Defter^ 
Khane  in  Musakafat  and  Arazi  Mevkufe  proceedings 


Issue  of  Tide-Deeds  by  the  Defter  Khant.      263 


be  received  by  the  Defter  Khane  Treasurv.     The  Disposal  of 

duties  and 

Uutevelis  of  Mulhaka  Vakfs  will  be  kept  out  fees. 
of  this  in  order  to  be  paid  to  them.  The  remainder 
will  be  delivered  weekly  to  the  Imperial  Evkaf 
Treasury  with  the  specified  registers.  The  share  of 
these  receipts  belonging  to  the  Clerk  and  Jabi  will  be 
at  once  paid  to  its  owners  by  the  Imperial  Evkaf 
Ministry  in  accordance  with  the  system. 

9.  The  same   system  as  in  the   provinces  will   be  Procedure. 
followed  in  Constantinople  and  its  environs  with  regard 
to  the  mode  of  carrying  out  the  procedure,  and  the  Title-deeds 
issue    of    title-deeds   for   pure   Mulk   by  the   Defter 
Khakani  officials,  in  accordance  with  the  special  law. 

PROCEDURE  IN  THE  PROVINCES. 


10.  The    records    of    Musakafat   and   Musteghillat  Records  of 
Mevkufe  in  the  provinces  will  be  handed  over  by  the  and  Mus- 
Muhasebejis  of  Evkaf  to  the  Defter  Khakani  officials  in 
each  Liva,  in  the  same  way  as  the  handing  over  of  the 
records  of  Arazi  Mevkufe  has  been  carried  out. 


11.  All  the  "  events  "  of  Musakafat  and  Musteo-hillat  Duties  of 

Defter 

Mevkufe,  that  is  to  say*,  the  alienation,  inheritance,  and  Khakani 
other  procedure  in  accordance  with  their  special  laws, of 
will  be  supervised  and  arranged  through  the  Defter 
Khakani   officials.     As   in  Arazi   Mevkufe,   the   said 
officials  will  deliver  temporary  certificates  in  order  to 


264  T/ie  Ottoman  Land  Code. 

— ! 

secure  owners  of  property  until  the  original  title-deeds 
are  sent  from  the  Defter  Khane.  And,  as  in  Constanti- 
nople, a  stamp  will  be  put  on  the  old  title-deeds  and 
given  to  their  owners. 

Monthly         12.     In  order  that  the  permanent  title-deeds  may 

register 

be  prepared  and  sent,  a  monthly  register  of  the  Musa- 
kafat  and Musteghillat  Mevkufe  of  which  the  "events " 
have  been  registered  and  temporary  certificates  issued 
will  be  prepared  and  sent  to  the  Defter  Khakani 
Ministry,  together  with  the  "  events  "  of  Arazi  Mev- 
kufe'. 

Payment         13.  After  the  fees  due  to  the  Defter  Khane  officials, 

into  Local   and  the  share   belonging   to   the   local    Mutevelis  of 

>my'    Mulhaka  Vakfs,  have  been  deducted  from  the  receipts 

from  Musakafat  and  Musteghillat  Mevkufe,  the  balance 

will  be  paid  into  the  local  treasury  for  account  of  the 

Muhasebejis  of  Evkaf,  together  with  the  receipts  from 

Arazi  Mevkufe.     A  receipt  will  be  taken  from  the  said 

Muhasebejis,  which  will   be   sent    with   the   monthly 

registers  to  the  Defter  Khakani  Ministry. 

Fourth  14.  The  fourth  share  of  the  receipts  from  Mulhaka 

Vakfs  belonging  to  the  Mutevel'is,  as  stated  in  Art.  13, 
will   be  delivered  at  once  to  the  local  Mutevelis   or 
their  agents  by  the  Defter  Khakani  officials,  who  will 
cause  the  temporary  certificates  to  be  sealed  by  them.     ^ 
The  shares  of  the  Mutevelis  and  Agents  who  are  in 


Issue  of  Title-Deeds  by  the  Defter  Khane.      265 
•  ~— •— 

Constantinople  will  be  sent  with   the   register  to  the  Payment   ' 
Defter    Xhaiu.    the    Muti'velis    and    Agents    will    be  ^ea^g  by 

:moned  from    there,  their  shares  paid  to  them,  and  Mutevelis 

and  agents. 

tin-  ^Ministry  will  make  them  seal  the  permanent  title- 
deeds.      In    order  that    the   title-deeds   of    Vakfs   of 
which   the  Mutevelis  and  Agents   have  not  yet  been 
appointed,  or  of  which  the  Mutevelis  and  4-gents  them- 
selves or  their  Agents  cannot  be  found  on  inquiry,  may  Avoidance 
not  be  detained,  the  Defter  Khakani  officials  w7ill  cause  ° 
them  to  be  sealed  by  the  Naib,  and  the  share  will  be 
sent  to  the  Imperial   Evkaf  Treasury  to  be  given  to 
the   Mutevelis    when    they   appear.     The   permanent 
title-deeds  will  be  prepared  and  sent  to  their  destina-  Trans- 
tion  by  the  Defter  Khane,  in  accordance  with  the  local  title-deeds, 
registers  received.      Those   for    Mazbuta    Vakfs   and 
Mulhaka  Yakfs  of  which  the  Mutevelis  are  in  Con- 
stantinople will  be  given  to  their  owners  as  sent  from 
here ;  those  for  Mulhaka  Vakfs  of  which  the  Mutevelis 
are  in  the  provinces  will  be  delivered  to  their  owners 
after  they  have  been  sealed  by  the  Mutevelis  through 
the  Defter  Khakani  officials,  and  the  temporary  certifi- 
cates given  before  will  be  taken  back. 

15.  All  salaries  and  expenses  on  account  of  the  Salaries 
transfer  of  the  provincial  Musakafat  business  to  the 
Defter  Khakani  will  be  paid  by  the  Defter  Khane,  and 
the  three  piastres'  cost  of  paper  and  one  piastre  clerk's 
fee  taken  as  before  on  registration  of  "  events "  for 
new  title-deeds  issued  for  Musakafat  and  Musteghillat 


266 


The  Ottoman  Land  Code. 


Mevkufe  will   belong  to  the  Treasury  of  the  Defter 
Khakani  Ministry.  « 


Sale,  &c., 
of  certain 
lands  by 
Muhase- 
bejis  of 
Evkaf. 


Registra- 
tion and 
certificates 
as  to 

registered 
Mahlul. 


Other 
duties  of 
Muhase- 
bejis  of 
Evkaf. 


16.  With  the  exception  of  land  in  the  provinces  of 
which  the  procedure  has  been  carried  out  in  accord- 
ance with  the  provisions  of  the  Land  Law,  and  Mahlul 
of  Ijaretein  <Musakafat  and  Musteghillat  Mevkufe,  and 
Ijare  Vahide  Mhsakafat  of  which  the  conversion  into 
Ijaretein  is  required,  and  places  as  stated  in  Art.  6 
which  are  not  let  to  anybody  and  have  been  assigned 
to  public  use  db  antique,  and  the  sale  of  which  is  not 
allowed    by   Sheri    law,    the    auction,    collection    of 
Muajele,  and  transfer  in  the  legal  and  systematic  way 
of  sites  in  the  sale  of  which  there  is  no  obstacle,  will 
as  before  be  carried  out  by  the  Mubasebejis  of  Evkaf. 
The  Defter  Khakani  officials  will  carry  out  the  regis- 
tration formalities  and  issue  temporary  certificates  for 
registered  Mahlul  to  the  persons  to  whom  it  is  sold 
and  to  whom  the  transfer  is  necessary,  on  production  of 
the  auction  bill,  and  the  Mazbata  of  the  Mejlis  Idare 
according  to  law  and  custom. 

17.  The  Ijare  Muejele  of  Ijaretein  Musakafat  and 
Musteghillat  in  the  provinces  will  be  collected  annually 
through  the  Muhasebejis  of  Evkaf :  the  auction  and 
adjudication  of  Mahlul  will  also  be  carried  out  through 
them.     In  order  to  collect  the  Ijare  Muejele  annually 
at  the  proper  time ;  to  know  the  properties  of  which  A 
the  inheritance  has  been  extended  ;  to  distinguish  those 


Issue  of  Title-Deeds  by  the  Defter  Khanl.      267 
which  have  become  Mahlul,  to  be  a  means  of  collecting  Monthly 

0  report  of 

the  Ijar«,  and  to  correct  the  registers    kept   by  the  sales,  etc., 


Muhasi-bijis  ';uf,  the  Defter  Khakani   officials 

will  send  monthly   to   the   Muhasebejis   of  Evkaf  a  officials- 
return   of  sales,  transfers  by   inheritance,  and   other 
proceedings  and  "  events." 

0 

SPECIAL  ARTICLE* 

18.  Instructions  regarding  the  office  work  and  duties  Duties  of 
of  Defter  Khakani  officials  will  be  issued  at  different 
times  by  the  Defter  Khakani  Ministry. 

9.  Bebi  ul  evel,  1293. 
23.  March,  1292. 


268  The  Ottoman  Land  Code. 


XXXY.  APPENDIX  TO  ARTICLE  91 
OF. THE  LAND  LAW. 


Unlawful  If  it  is  ascertained  that  the  inhabitants  of  a  village 
wjod?g  n°t  having  the  right  to  take  wood,  have  by  encroach- 
ment taken  wood  from  the  wood  which  has  been 
assigned  to  the  inhabitants  of  another  village,  the 
standing  value  of  the  trees  which  have  been  cut  down 
will  be  collected  from  the  persons  who  unlawfully 
encroached  and  took  wood,  and  divided  amongst  all 
the  inhabitants  of  the  village  who  possess  the  right  to 
take  wood. 

10.  Bebi  ul  evel,  1293. 
3.  March,  1292. 


• 


XXXVI.  INSTRUCTIONS  REGARDING 
THE  PREPARATION  IN  A  REGULAR 
MANNER  OF  CERTIFICATES  RE- 
CEIVED BY  THE  EMLAK  OFFICE, 


1.  The   certificates  for  alienation,  inheritance,  and  Certificates 
K     building  to  be  brought  by  owners  of  property  to  the  ating  in- 

Ernlak  office  at  the  Prefecture  of  the  town  will  be  an™  ^uiki- 
obtained  from  the  Imam  of  the  quarter  in  which  the  in&- 
property  is  situate.     In  order  that  Mukhtars  may  be 
informed  of  such  matters,  and  in  case  of  necessity  be 
held  responsible,  their  seal  on  the  certificate  is  also 
necessary. 

2.  If  one  or  both  the  Mukhtars  cannot  be  found  or  Procedure 

when 

will  not  sign  a  certificate,  the  reasons  will  be  written  in  Mukhtars 
postscript  on  the  certificate,   and  the  postscript   will  found! 

again  be  sealed  by  the  Imam. 

• 

3.  The  number  of  the  properties,  street  in  which  the  Particular, 
property  is  situated,  number  of  title-deeds  by  which  pert'v." 
the  property  is  held,  name,  address,  calling,  nationality, 

and  extent  of  share  of  the  shareholders,  if  any,  will  be 


2  70  The  Ottoman  Land  Code. 

~~T~  * 

stated  in  a  true  manner  in  the  certificates  issued  for 
sale  and  inheritance  by  the  Quarters,  Patriarchate  and 
Chief  Eabbi. 

Certificate  4.  The  certificates  required  when  any  Gedik  is 
"  alienated  must  state  whether  the  owner  is  alive. 
After  this  certificate  has  been  given  by  the  Imam  and 
Mukhtars  of  the  Quarter  in  which  the  owner  lives, 
a  sealed  and  certified  declaration  as  to  the  share  and 
value  of  the  Gedik  will  be  made  on  the  certificate  by 
the  Chief  of  the  Trade  to  which  it  is  attached,  and  by 
the  Council  of  the  Khan  if  the  said  Gedik  is  situated 
in  a  Khan. 

\ 
Certificates      5.  The  certificates  given  by  the  Quarters  for  aliena- 

Quarters.  tion,  inheritance,  and  building  must  not  be  dateless, 
rubbed  out,  or  erased  ;  certificates  in  this  state  will  not 
be  accepted. 

Notice  of        6.  In  order  that  a  note  may  be  made  against  the 

becoming    entry  of  a  property  which  has  become  Mahlul  by  the 

Mahlul>      death  of  the  owner  without  child,  it  is   the  duty  of 

Imams   and   Mukhtars  to   make   known  the   fact  by 

certificate  to  the  Emlak  Office  at  the  Prefecture  of  the 

Town  at  the  same  time  as  a  certificate  is  given  by  the 

Quarter  to  the  Imperial  Evkat  Treasury,  and  they  will 

be  obliged  to  carry  out  this  duty. 

7.  Together  with  certificates  for  alienation,  inherit- 
ance, and  building,  the  owner  will  bring  with  him  and 


Mukhtars  Ccrtificat  271 

.  to  the  Einlak  Office  all  the  title-deeds  (Temesuk)  production 

,  .    ,     ,  of  title- 

wbich  he  possesses.  deeds  by 

owner. 

8.  It  is  the  duty  of  all  Imams  and  Mukhtars  to  Return  of 
return  to  the  Erulak  Office,  within  ten  days  of  its  issue,  5S^»h 
the  permit  issued  by  the  Emlak  Office  for  the  aliena-  abandoned, 
tion  of  a  property  if  the  alienation  of  that  property  has 

been  abandoned  in  any  way. 

9.  The  said  certificates  will  be  written  according  to  Form  of 
the  copies  given  below.     Application  must  be  made  to  ce 

the  Emlak  Office  for  the  certificate  of  an  alienation  that 
requires  a  procedure  different  to  the  conditions  shown 
in  the  said  copies. 


CERTIFICATES  FOR  ALIENATION  AND  INHERITANCE. 

This  certificate  has  been  delivered  to  the  Emlak  Specimens 
Office  in  order  to  show  that  Ali  Effendi,  son  of  Veli,  of  °atceer 
the  wax  chandler  trade,  is  the  owner  by  three  title- 
deeds  (Temesuk)  of  a  house  No.  14  Jami  Sherif  Street, 
in  our  quarter,  belonging  to  the  Yakfs  of  Merzifoni  Kara 
Mustafa  Pasha,  Amuja  Hussein  Pasha,  and  Avariz  of 
the  Aidin  Ketkhuda  quarter,  that  he  is  living  at  the 
present  day,  and  that  he  will  now  alienate  the  said 
property  by  mortgage*  (Vefaen  Feragh)  to  Adile 
Khanum,  daughter  of  Osman,  wife  of  Ahmed  Aga,  of 
the  brass  founder  trade,  for  27,350  piastres. 

This  certificate  has  been  delivered  to  the  Emlak 


272  The  Ottoman  Land  Code. 

Specimen    Office  in   order  to   show  that  Rifaat  Effendi,  son   of 
cates.         Mehmed,  a  Finance  Clerk,  died  while  possessing  by 
two  title-deeds  (Ternesuk)  a  hous?  and  garden,  No.  5 
Nergis  Street,  in  our  quarter,  lx  to  the  Vakfs 

of  Pirinjji  Yusuf  Aga  and  Ahmed  Ketkhuda,  and  that 
after  it  has  been  inherited  by  his  children,  Mehmed 
Effendi,  of  full  age,  and  Khadije  Behie  Khanum,  minor, 
in  equal  shares,  it  will  be  alienated  by  the  one  of  full 
a^e  in  person,  and  the  share  of  the  minor,  by  Sheri 
Hnjet,  through  guardians,  to  Kashid  Aga,  son  of  Ahmed, 
of  the  tobacco  trade,  for  a  sum  of  15,000  piastres. 

This  certificate  has  been  delivered  to  the  Emlak 
Office  in  order  to  show  that  by  the  death  of  Agiah 
Effendi,  son  of  Suleiman,  the  owner  by  eight  title- 
deeds  (Temesuk)  of  a  house,  garden,  and  two  Masuras 
of  water,  belonging  to  the  Haremein  Sherifein  Vakfs, 
No.  42  Orkhanie  Street,  in  our  quarter,  his  five 
children,  Ahmed  and  Feizi  Beys,  of  full  age,  and 
Shevkie  Khanum,  Husni  Bey,  and  Alevie  Khanum, 
minors,  inherit  it  in  five  equal  shares.  After  the 
share  of  Ahmed  Bey,  deceased,  has  been  inherited  by 
his  daughter  Rushdie  Khanum,  minor,  and  the  share 
of  Shevkie  Khanum,  deceased,  has  been  inherited  by 
Shemsi  Bey,  of  full  age,  and  Murad  Bey,  minor — 

i.  The  two- fifth  shares  of  the  minors,  Husni  Bey  and 
Alevie  Khanum ; 

ii.  The  one-fifth  share  of  the  minor,  Eushdie 
Khanum  ; 


Mukhtars  Ccrtificaf  273 

« 

iii.  r;  are  <>f  tin-  minor,  Murad  Bey,  Specimen 

and   , 

iv.  The  sha  i/i  and  SheniM  lW<.of  full  age, 

36   and    appurtenances,   will   be 
alimated — 
(i.)  By  their  mother,  Derya  Khanum,  daughter  of 

Abdullah; 

(ii.)  By  her  father,  Shefik  Bey,  guardian ; 
(iii.)  By  Sheri  Hujet,  by  his  brother  Shenisi  Bey, 

and 
(iv.)    By  personal  consent,  to  Eiza   Bey,   son   of 

Abdul  Hamid  Eifendi  lor  109,000  piastres. 

*  This  certificate  has  been  delivered  to  the  Emlak 
Offic^  in  order  to  show  that  Chibukji  Kerim  Aga,  son  of 
Abdul  Latif,  the  owner  by  two  title-deeds  (Temesuk) 
of  a  building  site,  Xo.  11  Imam  Street,  in  our  quarter, 
of  3600  ziras,  belonging  to  the  Kareki  Hussein  Chelebi 
and  Ham  a  Khatun  Yakfs,  will  separate  a  piece  of  975 
zirns  from  the  said  building  site,  in  accordance  with 
the  plan  prepared,  the  front  of  the  separated  site  to  be, 
as  before,  on  the  said  street,  and  alienate  to  the  owner 
of  the  said  house,  Rifaat  Eifendi,  son  of  Sherif,  Customs 
Clerk,  and  his  wile,  Fatmetuzehra  Khanum,  daughter 
of  Eejeb,  in  equal  shares,  for  20  piastres  per  zira,  total 
19,500  piastres,  and  that  the  said  Aga  is  living  at  the 
present  day. 

This  certificate  is  delivered  to  the  Emlak  Office  in 

T 


274  The  Ottoman  Land  Code. 

/ 
Specimen    order  to  show  that  Naile  Khanum,  daughter  of  Abdullah, 


certifi- 
cates. 


owner  by  one  title-deed  (Temesuk)  )f  a  house  and 
garden,  No.  6  Shahin  Street,  of  our  quarter,  belonging 
to  the  Sultan  Mustafa  III.  Yakf,  is  dead,  that  the  said 
house  will  be  inherited  by  her  son,  Majid  Bey,  son  of 
Eahim  Bey,  that  the  said  deceased  has  no  other  than 
the  said  child,  and  that  the  said  child  is  living  at  the 
present  day. 

This  certificate  is  delivered  to  the  Ernlak  Office  in 
order  to  show  that  the  orphans  of  Ahmed  Effendi, 
Paper  Seller,  Ali  Eashid  Effendi  and  Khadije  Saihaz 
Khanum,  mortgagees  (Vefaen)  of  a  house  with  two  title- 
deeds  (Temesuk),  No.  1  Chikrnaz  Cheshire  Street,  or 
our  quarter,  belonging  to  the  Ayaz  Pasha  Vakf,  have 
received  the  equivalent,  5000  piastres,  and  will  cancel 
the  mortgage  in  favour  of  the  owner,  Hashirn  Aga, 
son  of  Yakub,  of  the  handkerchief  trade. 

As  Hassan  Aga,  son  of  Muhsin,  Fruiterer,  owner  by 
two  title-deeds  (Temesuk)  of  one-third  share  of  a 
grocer's  shop,  No.  155  Laleli  Street,  of  our  quarter, 
paying  60  akjes  Ijare  Muejele,  with  its  appurtenance, 
considered  as  120  shares,  is  going  to  alienate  by  mort- 
gage (Vefaen  Feragb)  his  said  .share  of  the  shop  and 
Gedik  to  Ibish  Aga,  son  of  Mehmed,  Turban  Seller, 
for  16,000  piastres,  this  certificate  is  delivered  to  the 
Emlak  Office  in  order  to  show  that  the  said  Hassan 
Aga  is  living  at  the  present  day. 


Mukhtars  Certificates.  275 

^ 

• 
BUILDING,  ADDITIONS,  REPAIRS,  AND  DEMOLITION.    Specimen 

certiti- 

This  certified  is  delivered  to  the  Emlak  Office  in  cates- 
order  to  show  that  Kifaat  Effendi,  son  oi'  Eshref, 
owner  by  three  title-deeds  (Temesuk)  of  a  building 
site,  No.  4  Beyjiz  Street,  of  our  quarter,  belonging 
to  the  Bali  Pasha  Vahf,  will  build  a  house  of  three 
storeys,  with  five  rooms  and  two  ante-rooms. 

REPAIRS  AND  ADDITIONS. 

This  certificate  is  delivered  to  the  Emlak  Office  in 
order  to  show  that  Ayshe  Khamim,  daughter  of  Tur- 
mush,  owner  by  one  title-deed  (Temesuk)  of  a  house 
and  garden,  No.  2  Durt  Cheshme  Street,  of  our  quarter, 
belonging  to  the  Zeineb  Khatun  Yakf,  will  make  a 
small  repair  to  the  said  house  in  its  present  form. 


CONVERSION  AND  ADDITION. 

This  certificate  is  delivered  to  the  Emlak  Office  in 
order  to  show  that  Izzet  Effendi,  son  of  Rifaat,  owner 
by  five  title-deeds  (Temesuk)  of  the  fruiterer  and  grocer 
shops,  No*.  60  and  62,  Uzun  Gharshu  Street,  in  our 
quarter,  will  demolish  them,  and  build  one  haber- 
dasher's shop. 

DEMOLITION. 

As  Rifaat  Effendi,  owner  of  house  No.  3  Banka 
Effetidi  Street,  in  our  quarter,  is  going  to  demolish  it 

T  2 


276  The  Ottoman  Land  Code. 


Specimen    in  order  to  make  it  into  a  separate  garden  for  the 
cates.         house  with  garden,  No.  4,  opposite,  this  certificate  is 

delivered   to   the    Emlak   Office    in    order    that    the 

registration  may  be  amended. 


CERTIFICATED  FROM  HEADS  OF  TRADES  CONCERNING 
GEDIKS. 

There  being  a  tailors'  Gedik  in  the  clothier's  shop, 
No.  33  Aralik  Street,  Terzi  Bashi,  Grand  Bazaar,  and 
the  owners  being  Ahmed  EfTendi,  son  of  Ali,  and 
Theodori,  son  of  Georgi,  as  the  paid  Theodori  will 
now  alienate  his  half-share  to  the  said  shareholder 
Ahmed  Effendi  for  70l)0  piastres,  this  certificate  has 
been  delivered  to  the  Emlak  Office  in  order  to  show 
that  the  said  Gedik  is  truly  theirs,  and  that  this  sum 
is  its  value. 


CERTIFICATES  FROM  THE  PATRIARCHATE,  CHIEF 
KABINATE,  CHURCH  AND  COMMUNITY  COUNCILS. 

Seller. 

As  Peshtamalji  Oglu  Agop,  son  of  Mardiros,  resident 
in  Tatavla,  of  the  Curiosity  Trade,  is  going  to  alienate 
by  mortgage  (Vefaen  Feragh)  ibr  20,000  piastres,  his 
house,  No.  35  Bali  Pasha  Street,  Muhsine  Khutun 
quarter,  in  the  vincity  of  Kum  Kapu,  this  certificate  is 
delivered  to  the  Emlak  Office  in  order  to  show  that  he 
is  living  and  an  Ottoman  subject. 


Mnkhtars  Certificates.  277 


Ev 

A-  Kyserli  Oglu  ( iror^aki,  son  of  Ytisil,  print*.. 
nt  in  tin4  Ktmi'kji  (jiiarter,  is  going  to  purchase 
fur  120,000  piastres  a  house,  No.  35  Bali  Pasha  Street, 
Muhsine  Ivhatun  quarter,  iu  the  vicinity  of  Kum 
Kapu,  this  certificate  is  delivered  to  the  Emlak  Office 
in  order  to  show  that  he  is  an  Ottoman  subject. 


278  The  Ottoman  Land  Code. 


XXXVII.  ACTION  NOT  TO  BE  TAKEN 
IN  THE  COURTS  AND  PUBLIC  OF- 
FICES BEFOEE  THE  VERGI  ON 
PROPERTY  HAS  BEEN  PAID. 


Vergi  to  be      In  order  to  facilitate  collection,  a  Vezirial  order  has 

hearing °of  been   issued    to   the    Sheikh    ul    Islamate,   and    the 

search  of     Ministries  of  Finance,  Evkaf,  and  Defter  Khakani,  that 

register.      no  actions  with  regard  to  property  in  Constantinople 

and  the  three  cities  are  to  be  heard  in  the  Courts,  or 

search  made  in  the  registers  of  the  Evkaf  and  Defter 

Khakani  without  the  production  of  receipts  for  Vergi. 

10.  Bebi  ul  Akhir,  1293. 

22.  April,  1292. 


279 


TRANSLATION    OF    NOTES    IN    LEGIS- 
LATION OTTO  MANE. 

• 
• 

Notes  to  L 

XOTE  (a).  In  the  second  section  of  private  rights  we  have 
clause 

1.  The  legislation  which  exceptionally  governs  some  categories 

of  landed  property,  and   specially  those  of  public  lands  (Beit-nl-  Classitk-a- 
nial),  that  is  landed   property  of  the  State  considered   as  an  in-  tion  of 
dividual,  property  of  which  only  the  possession  (Tesarrtif),  that  is,  laml* 
the  whole  produce  with  part  of  the  rights  of  property,  is  granted  to  Nature  of 
individuals  in  virtue   of  a  title-deed  (Tapu).     This  possession  of  tenure, 
public  lands  thus  becomes  under  certain  conditions  an  object  (1)  of 
legal  possession  ;  (2)  of  hereditary  transmission ;  and  by  the  per- 
mission of  the  competent  authority  (3)  of  alienation  to  living  persons 
whilst  their  nuda  proprietas  belongs  to  the  State.     This  legislation 
is  also  applicable  to  lauds  which,  separated  from  the  public  lands, 
have  been  converted  subsidiarily  into  vacoufs,  either  by  the  Sultans, 
or  by  all  others  with  the  sovereign  authorisation,  which  vacoufs  must 
be  distinguished  from  properly  called  vacoufs. 

We  have  classed  this  legislation  separately  because  freehold 
property  (do minium  plenum)  of  private  persons  (Mulk)  is  governed 
by  the  rules  of  common  right,  that  is,  by  the  books  of  religious 
jurisprudence  (Fikh)  (see  Art.  2-3  of  the  Land  Law,  and  the  note 
•25). 

2.  The    legislation    which    exceptionally    regulates    the    legal 
standing,  both  commercial  and  maritime,  relative  to  private  rights 
(see  the  following  note). 

b.  An  exact  translation  of  the  text  of  the  law  inserted  in  the 
article  of  M.Belin,  an  eminent  Orientalist,  "On  landed  property  in 
Mussulman  countries,  and  especially  in  Turkey"  (Chapter  XL  extract 


2 So  The  Ottoman  Land  Code. 

• 

No.  9  of  the  year  1801,  of  tho  Asiatic  Journal,  pages  180-248).  As 
regards  the  supplementary  laws,  modifying  or  relative  to  the  Law 
in  question  it  must  be  observed  : — 

Code :  how  1.  That  the  Law  has  been  completed  (a)  by  a  regulation  about 
completed,  the  Tanus,  or  about  the  title-deeds;  and  (b)  by  other  regulations 
on  title-deeds  of  vacouf  property,  which  are  classed  following  the 
Law  as  legislation  about  priva'e  right,  whereas  the  legislation 
specially  relative  to  the  administration  of  public  property,  and  that 
iclative  to  the  ^administration  of  the  Evkaf,  have  been  classed  in 
the  administrative  law  (Leg.  Ott.  Vol.  II.). 

Extension         2.  That  the  same  Law,  by  the  promulgation  of  new  laws  relative 

of  rules  of   to   the    extension   of  the   right    of    inheriting  •  lands    Mine   ami 

ance  l  Mevkufe,  and  (5)  to  the  forced  sale  of  lands,  hypothecated  or  noi , 

has  been  essentially  modified,  especially  in  Chapters  III.  and  IV. 

of  the  Book  1,  Art.  115,  and  elsewhere.     The  respective  laws  are 

pointed  out  in  the  notes  to  the  modified  articles. 

Rights  of  3.  With  respect  to  the  right  of  foreigners  to  hold  immovable 
aliens.  property,  whose  Government  has  adhered  to  the  Protocol  in  virtue 
of  which  foreigners  can  be  allowed  to  enjoy  the  right  of  holding 
immovable  property  (No.  13,  page  168  ) ;  (2)  The  Protocol  ad 
hoc,  Leg.  Ott.  Vol.  L,  No.  8,  pages  22,  23,  the  Circular  of  the 
Sublime  Porte,  Leg.  Ott.  Vol.  L,  No.  9,  page  25. 

Gift  of  4.  With  respect  to  lands  granted  gratuitously  by  the  Imperial 

lands  to       Government  to  the  colonies  established  in  Turkey,  see  the  special 
colonists.     law  ad  }loc  Qn  t}ie  coionisa,ion  jn  Turkey  of  foreign  families  (Le'g. 
Ott.  Vol.  I.,  No.  6,  p.  16,  and  especially  Arts.  4,  8  and  9). 

Compari-         5.  Compare   also   the   rules   relative  to  the  attributions  of  the 
son  of          Administrative  Councils  who  are  to  manage  all  that  concerns  the 

rents  of  vacoufs  and  the  revenues  of  the  Tapou   (Leg.  Ott.  Vol . 

II.,  Law  concerning  the  Vilayets). 

Description      6.  It  must  be  observed,  finally,  that  the  law  extending  the  right 
of  Code.       to  inherit  designates  the  Code  in  question  by  the  title  of  Code  of 
Landed  Property,  whilst  the  law  of  forests  designates  the    same 
codes  by  the  title  Rural  Code. 
(1.)  See  following,  5,  6,  9-11. 
(2.)  See  the  following  notes,  5,  12,  15. 


Notes.  281 


(3.)  See  the  following  notes,  5,  n;.  IS  20. 

:  .llmving  notes  ">,  21-22, 

{'>.  }    Srr  tin-  f.illowin-  Art.  '>  and  : 

•  ling   to    the    Unman   law   de   ivruin    divi.sione:  "Qua-darn  Roman 
natural!  jure  c»iiinmni:i  snnt  omnium,  qua>dani   piibik-a,  qii;rdam  I'txw- 
nniversitatis,  qusedam  millius,  pleraq  "ruin"  (pr.  Instit.  2, 

1)  ;  and  according  to  the  Law  1  pr.,  Dig.  1,  8  :  "  snmina  ix-ruin  divisio 
in  dno^nrticulos  dcdncitur:  11:1111  alia*,  sunt  divini  juris,  .ilia}  Immaui. 
Divini  juris  sunt  velnti  res  sacra-  <-t  religiosas  .  .  t  ha3  atttcm  res, 
qua1  litunani  juris  snnt  aut  publican  sunt,  aut  privata?  :  quaj 
pubiica>  sunt,  uullius  in  bonis  esse  creduntur,*ipsius  enim  nniversi- 
tatis  esse  crednntur  privatrc  autem  sunt,  qua3  sin;^ulurum  sunt.'' 

(0.)  According  to  tlie  Iioman  laws:  "  Privata;  res  sut.t,  qnaa 
sineulorum  "  (see  note  5).  Compare  also  Arts.  537  and  544  of  the 
C'ivil  Frencli  Code. 

7.  The  karie  signifies  the  agglomeration  of  inhabitants  forming  Karie. 
a  circumscription  of  the  lowest  order,  the  commune  ;  kasaba  con-  Kasaba. 
sists  of  one  or  more  communes  ;  the  Canton  (Belin). 

8.  Literally.     The  servitude  of  the  ground  Mulk  belongs  to  the  Servitude. 
proprietor;  rakabe,  which  is  used  principally  for  persons,  for  living 
beings,  signifies  the  nape,  the  lowest  part,  of  the  neck,  on  which,  in 
animals,  the  yoke  rests  ;  it  is  therefore  the  servitude  of  the  land 

which  is  in  the  duminium  plenum  of  its  proprietor. 

9.  See  above,  note  (a)  and  notes  5,  6. 

10.  The  word  Beit-ul-mal  signifies   properly  house  of  property.  Meaning  of 
It  is  the  name  of  the  Mussulman  administration  which  collects  all  the  Beit-ul- 
estates  and  all  the  portions  of  a  vacant  inheritance.     It  keeps  also  Mal* 

in  deposit,  and  it  administers  the  property  of  the  absent  who  are 
joint  heirs  but  have  left  no  representatives  with  powers  of  attorney 
(Sol  vet  Mussulman  Estates^  page  21,  note  2),  as  regards  especially 
the  attributions  of  the  Beit-ul-mal,  concerning  estates  in  general, 
and  in  particular  on  estates  escheated,  see  (1)  the  rules  about  the 
Inventory  of  Estates  (Leg.  Ott.  Vol.  I.,  No.  10,  page  27-40)  and 
(2)  the  Vezirial  Order  about  Christian  estates  (Leg.  Ott.  Vol.  I., 
No.  11,  pages  41  to  44);  see  also  Art.  Ill  of  the  Law. 

As  regards  the  right  of  succession  of  the  pious  foundation  (piee 


282        .     The  Ottoman  Land  Code. 

•  Succession   causa1)  to   the  vacant  possession  of  vacouf  lands  held  by  privnic 

foundation    Persons>  see  Art'  3  of  Na  19' 

The  right  of  the  Beit-ul-mal,  which  corresponds  with  fiscus  of 

Roman  Roman  law,  has  been  preserved  also  (1)  in  the  Roman  laws  : 
"vacantia  mortuorum  bona  tune  ad  fiscum  jubemus  transferri,  si 
nullum  ex  qualibet  isangiiinis  linea  vel  juris  titulo  legitimum 
reliquerit  intestatus  heredem  "  (Lex  4,  Ccd.  10,  10.  Compare  also 
Lex  96,  §  1,  Dig.  1,  3  ;  Lex  20,  §  7,  Dig.  5,  3 ;  Lex  1,  pr.  Dig. 
38,  9);  and  (2)  in  the  Civil  French  Code  (Arts.  33,  539,  and  768> 

11.  See  above,  note  (a). 

Resfiscales:      12.  According  to  Roman  law,  "res  fiscales" — that  is,  "  loca  quee 

res  publics.  sunt  in  figci  patrimom-0  "  (Lex  2,  §  4,  Dig:.  43,  8) ;  they  are  however 

contained  in  the  generic  expression  "  res  publican : "  "  si  quid  publici 

est,  ejus  nihil  venit,  si  res  non  in  uso  publico  sed  in  patrimonio 

fisci  erit"  (Lex  72,  §  1,  Dig.   18,  1);  and  for  that  see  the  note 

.     below,  22. 

Multezims.      13.  Farmers  for  a  term,  or  grantees  of  iltizam  (Belin). 

Muhassils.  ^  According  to  M.  de  Hammer,  this  word  signifies  a  Pasha  to 
whom  the  Porte  has  granted  for  life  malikiane  (in  the  form  of  Mulk), 
the  collection  of  the  whole  revenue  arising  from  the  taxes  of  a 
sanjak,  district  of  the  second  class  (Belin). 

Title-  15.  For  the  Tapu  Law  and  the  Regulations  as  regards  the  title- 

deeds  of  mevkufe  lands,  see  below,  note  20. 


Division  of       lg.  Accordin0"  to  Roman  law  :    "  Res  divini  iuris  sunt  veluti  res 

Araz   " 

knfe. 


Mev-  gacr£B  et  re}jgjosai,»  (Lex  1,  or  Dig.  1,  8)  ;  "  sacra  loca  ea  sunt  qua3 


publice  sunt  dedicata,  sive  in  civitate  sint,  sive  in  agro  "  (Lex  9, 
eod.). 

Laws.  17.  Successive  ordinances  of  the  sovereigns  and  following  civil 

laws  decreed  by  the  Ottoman  Sultans  (Worms,  Belin). 

Imperial          18.  According  to  Roman  law  :  "  Locum  publicum  tune  sacrum 
grants.        ge,.j    posse,    cum    princeps    eum   dedicavit,   vel    dedicandi  dedit 
potestatem  "  (Lex  9,  Dig.  1,  8). 

\.\es,  &c.        19.  Rusum  or  rusumat  is  a  generic  term  which  seems  to  mean, 
as  well  as  Miriyat,  all  the  taxes  except  the  tithes  and  the  customs, 


Notes.  283 

which    will    correspond    witli    the    indirect    taxes    of    France 
(Belin). 

As    iviranls   (a)    the    right   of    possession   and    the    various  Classes  of 
•  Ties  of  vacouf  hinds,  and  (A)  the  granting  and  the  form  of  Vakf  lands, 
their  title-deeds,  compare  to  («.)  Chapter  I.  (Arts.  1  to  6)  of  No.  19  ; 
to  (/>)  Arts.  7  to  35  of  the  same  Law  and  the  other  Instructions 
and  Regulations  about  the  title-deeds  of  vakf  lands  (Nos.  8  and  Title  to 
(J).     As  regards  the  titles  of  possession  of  mevkule  lands,  belonging  lands- 
to  the  State  domain  (Beit-ul-mal)  which  arefto  be  drawn  up  by 
the  financial  functionaries,  and  of  which,  however,  the  drawing-up 
has  been  confided  to  the  functionaries  of  the  general  administration 
of  the  Vacoufs,  see  the  order  on  the  re-organisation  of  the  Vacoufs, 
c  assed  in  the  Administrative  Law,  Leg.  Ott.  Vol.  II.,  under  the 
title  Administration  of  Yakfs. 

As  regards  lands  annexed  anciently  to  a  church  or  a  monastery, 
see  Art.  122 ;  finally,  as  regards  Vakf  Forests,  see  the  Forest  Law, 
Leg.  Ott.  Vol.  II.,  and  especially  Art.  19. 

21.  "  Viarum  quasdam  publicaa  sunt,  quondam  privatfe,  qua3dam  Highways, 
vicinales.     Publicas  vias  dicimus  quas  Grreci  fiao-iXiKas  appellant " 
(Lex  22,  23,  Dig.  43,  8).     As  regards  French  law,  compare  Art. 
538  of  the  Civil  Code. 


22.  According  to  the  Roman  law,  "  res  publics  " — that  is,  "  loca  Common 
quae  publico  usui destinata  sunt"  (Lex 2,  §§  2-5,  Dig.  43, 8)  ;  accord-  lands, 
ing  to  the  French  Civil  Code,  things  which  belong  to  no  one,  and  the 

use  of  which  is  common  to  all  (Art.  714) ;  but  by  the  expression 
"  res  publican "  of  Roman  law  are  intended  also  such  things,  which  are 
distinguished  from  other  things  by  this  only,  that  their  owner  is 
not  a  private  person,  but  is  the  Government  itself  or  a  certain 
commune  (compare  Lex  2,  §  4,  Dig.  43,  8;  Lex  17,  Dig.  50, 
16;  Lex  72,  §  1,  Dig.  18,1)." 

23.  According  to    Roman   law,  "  res   nullius,"  because   "  quod  Waste 
humani  juris  est,  plerumque  alicujus  in  bonis  est,  potest  autem  et  lands, 
nullius  in  bonis  esse;"  whilst  "quod  divini  juris  est,  id  nullius  in 
bonis  est ; "  that  is,  he  is  in  all  cases  considered  as  "  res  nullius  "  (Lex 


284  The  Ottoman  Land  Code. 

, — 

1  pr.,  Dig.  1-8).    As  regards  French  law,  compare  Arts.  539  and  713 
of  the  Civil  Code.     8c-e  below,  Arts  103  to  105. 

Mute-  24.  That  is,  "  trees  growing  naturally  on  certain  ground  "  (Art. 

ferikat.  106),  "  mines  "  (Art.  107),  "  lands  in  escheat  of  an  Ottoman  subject 
who  has  abandoned  his  nationality  "  (Art.  Ill),  "  property  of  slaves  " 
(Art.  112),  "  church  property  "  (Art.  122),  "water  lor  drinking  and 
for  irrigation  "  (Art.  124),  "rice  grounds  "  (Art.  128),  "  communal 
lands"  (Art.  130),  "Chiftlik"  (Art.  131),  "land  recovered  from  the 
sea  "  (Art.  132): 

Mode  of  25.  This -property  (tesarruf)  of  the  State  lands  presents  in  some 

possession,  respects  affinity  (1)  with  the  "  locatio  perpetua  agrorum  civitatis 
veciigalium,"  on  the  one  hand  ;  and  (2)  on  the  other  hand,  with  the 
"  usufruct "  of  the  Koman  legislation :  it  holds  the  middle  place 
between  these  two  institutions,  holding  the  dominium  ususfructus 
in  opposition  to  the  tiomimum  proprietatis  which  belongs  to  the 
State.  The  lands  of  the  public  domain  (Mirie)  of  the  Ottoman 
Empire  and  those  of  the  Koman  State  (agri  publici)  have  the  same 
origin.  According  to  the  principles  of  the  jus  gentium  of  the  ancients, 
preserved  also  in  the  Roman  law,  "  Quee  ex  hostibus  capiuntur,  jure 
gentium  statim  capientium  fiunt "  (Lex  5,  §  7  ;  Lex  51,  §  1,  Dig. 
41,  1),  but  the  booty  was  given  up  to  the  State,  and  the  conquered 
land  became  also  ager  publicus  (Lex  13,  Dig.  48,  13 ;  Lex  20,  §  1, 
Dig.  49,  15).  These  agri  publici  on  the  one  part  are  "qui  in 
perpetuam  locantur ; "  that  is,  with  the  condition  to  pay  a  rent  in 
virtue  of  which  they  could  not  be  dispossessed,  neither  those  to  whom 
they  had  been  granted  nor  their  heirs  (Lex  9-11,  Dig.  39,  4 ;  com- 
pare also  Lex  1,  Dig.  6,  3).  On  the  other  hand,  these  lands  (Mirie), 
which  have  become  so  by  conquest,  according  to  the  principles  of 
Mussulman  rights  of  war,  are  those  which  have  been  granted  to 
individuals  as  a  possession  (tesarruf).  See  note  (a). 

Title-  26.  See  end  of  Art,  3,  and  note  15. 

deeds. 

27.  According  to  Roman  law,  "  fructuarius  causam  proprietatis 

Tilling  ^  deteriorem  facere  non  debet,  meliorem  facere  potest"  (Lex  13,  §  4, 
imperative,  -p^  ^  -^  he-cause  "  ususfructus  est  jus  alienis  rebus utendi,  fruendi 
salva  rerum  substantia"  (Lex  1,  Dig.  7,  1) ;  and  according  to  the 
French  Civil  Code — the  right  to  enjoy  or  use  things  of  which 
another  is'  the  proprietor,  like  the  owner  himself,  but  on  condition 
to  preserve  the  substance  (Art.  578) ;  as  sanctioning  the  provisions 


Notes.  285 

<>f  Art.  9,  the  law  permits  by  Art.  08  and  elsewhere  the  termination 

of  the  right  of  possession  on  account  of  non-production  during  three 

S,  in  conformity  in  some  respects  to  the  French  Civil 

.  and  to  1  Ionian  laws  (Lex  1,  §  5,  Dig.  7,  7).     See 

\  and  note. 

hair,    properly  a   meadow  where   grass  grows  sufficiently  Meadows, 
high  to  be  mowed  (Belin). 

29.  According  to  Eoman  law,  "quidquid  in  fundo^ascitur,  quid-  Produce. 
quid  inde  percipi  potest,  ipsius  fructus  est"  (Lex  9  pr.,  Dig.  7,  1); 

that  is,  as  regards  the  usufruct  of  land,  "all  that  it  produces 
and  all  that  can  be  gathered  or  collected  from  it  is  part  of  its 
produce." 

30.  That  is,  "  fallow  land,"  and  according  to  the  Eoman  expression  Fallow. 
"  terra  novalis."     Those  lands  are  called  fallow  lands  which  remain 
uncultivated  for  a  year,  and  which  the  Greeks  call  vfos  (Lex  30, 

§§  2,  50,  16). 

31.  See  Arts.  13-14. 

32.  See  Art.  9,  and  note  27. 

33.  According  to  Roman  law,  "  a  neighbour  cannot  go  either  on  Trespass, 
foot  or  on  horseback  through  the  field  of  another  provided  the 

field  does  not  owe  him  servitude,  but  every  one  is  allowed  to  make 
use  of  a  public  road"  (Lex  11,  Cod.  3,  34).     There  is  only  one  case 
where  one  is  obliged  to  grant  a  passage  without  servitude  "  when  Right  of 
the  public  road  is  destroyed  or  covered  by  the  waters  of  a  river  passage, 
which  has  overflowed  its  banks,  the  nearest  proprietor  must  furnish 
another"  (Lex  14,  §  1,  Dig.  8,  6).     Compare  French  Civil  Code, 
Arts.  682-685. 

34.  "  If  the  whole  of  a   field  must  be  a  path  or  a  road,  the  Right  of 
owner  of  the  land  subject  to  such  conditions  cannot  do  anything  to  Wa7- 
prevent  the  carrying  out  this^in  any  part  of  the  field"  (Lex  13,  §  1, 

Dig.  8,  3).  "  But  it  is  agreed  that  the  owner  of  the  dominant  land 
must  always  pass  by  the  road  which  he  has  once  taken,  and  he  has 
not  the  right  to  change  it"  (Lex  9,  Dig.  8,  1). 

As  regards  these  servitudes,  "iter,  actus,  via,"  of  Roman  law, 
compare  also  the  Law  1  pr.,  7pr.,  Dig.  8,3;  pr.  Inst.  (2,  3);  and 
Law  16,  Dig.  8, 1.  As  regards,  however,  private  roads,  "  quae  ad 


286  The  Ottoman  Land  Code. 

u 

agios  ducant,  per  quas  omnibus  commcare  liceat,"  and  which  are 
considered  as  "  via3  publicse,"  compare  the  Law  2,  §  23,  Dig.  43, 8. 

Trespass  35.  According  to  the  Roman  law  :  "Si  quis  clam  aut  vi  agrum 

unlawful,  intraverit,  vel  fossam  fecerit,  interdicto  quod  vi  aut  clam  tenebitur" 
(Lex  9,  §  3,  Dig.  43,  21).  "  Quid  sit  vi  factum  vel  clam  factum 
videamus.  Yi  factum  videri  .  .  .  si  quis  contra  quam  prohiberetur 
fecerit,  ...  si  quis  jactu  vel  minimi  lapilli  prohibitus  facere 
perseveraverit  facere  .  .  .  Clam  facere  videri,  .  .  .  eum  qui  celavit 
adversarium  ntque  cum  denuntiavit,  si  modo  timuit  ejus  contro- 
versiam  aut  debuit  i^mere,"  &c.  (Lex  1,  §§  5-8,  Lex.  3.  §§  7-8,  Dig. 
43,  24).  According  to  the  Law  12  (eod.)  "  colonus  et  fructuarius 
fructuum  nomine  in  hoc  interdictum  admittantur  "  (compare  also 
Lex  3,  §§  13-16,  Dig.  43,  16 ;  and  as  regards  the  utilis  actio  nega- 
toria  vel  emphyteuta  Lex  16,  Dig.  8,  1).  As  regards  French  law, 
compare  Rural  Code  (Law  of  28  Sept.,  1791,  Art.  17). 

Partners'         36.  According   to   Roman  law,  "  in  communione   vel   societate 
lands.  nemo   compellitur   invitas  detineri "  (Lex   5,    Dig.   10,   3) ;    also, 

according  to  French  law,  "no  one  can  be  compelled  to  remain  with- 
out division  "  (Civil  Code,  Art.  815). 

Division  or  37.  By  Roman  law,  "  communi  dividundo  judicium  locum 
severance,  habet  et  in  vectigali  agro  " ;  but  in  opposition  to  the  provisions  of 
Art.  15,  "  judex  magis  debet  abstinere  in  regionibus  divisione  "  (Lex 
7  pr.,  Dig.  10,  3 ;  Lex  10,  Dig.  10,  2).  However,  compare  as 
regards  the  division  of  common  usufruct,  the  Law  7,  §  10,  Dig.  10,  3, 
and  the  Law  13,  §  3,  Dig.  7,  1.  As  regards  French  law,  compare 
the  Civil  Code,  Art.  815,  and  the  subsequent  (1872)  597  ;  the 
Code  of  Civil  Procedure,  Art.  966 ;  and  the  following,  but  especially 
Arts.  984,  985.  See  also  the  notes  38-42. 

Finality  of      38.  In    conformity    with    Roman    law,    according    to    which 
division.       "  judicem  in  prasdiis  dividundis  quod  omnibus  utilissimum  est,  vel 
quod  malint  litigatores  sequi  convenit''  (Lex  21,  Dig.  10,  3). 

T,  39.  In  conformity  also  to  the  Roman  law,  according  toaRescriptum 

Imperatorium  :  "  Si  inter  vos,  majores  annis  viginti  quinque,  rerum 
communium  divisio  relicta  vel  translata  possessione  finem  accepit, 
instaurari,  mutuo  bona  fide  terminata  consensu,  mini  me  possunt  "    it 
(Lex  8,  Cod.  8,  38);  but  the  division  may  be  rescinded  on  account 


Notes.  287 


of  fraud  i>r  deceit,  or  if  there  has  been  "  perperam  sine  judicio":  Voidai>ilif  v 
"  M.  .1111,  per  fraud  em  vel  dolum  vel  pi-rpcram  sine  judicio  of  division. 

-  divisionihus  s«.lct  subvenire  ;  4111:1  in  I>OHM-  tidei  ju<liciis,  quod 
inequaliter  factum  ease  constituent,  in  meliusrefonnabitur'1  (I. 

3,  38).  As  to  tin1  French  law,  according  to  which  the  claim. 
l'.«r  rescission  isadmittrd  on  account  of  violence  or  fraud  or  wrong  to 
the  extent  of  inoiv  than  the  fourth,  compare  Arts.  887-892. 

40.  Procedure  to  follow.  —  Compare  (1),  as  regards  the  Roman  law,  Procedure 
H  _r.  1",  :'..  Cod.  3,  37:  "  Communi  dividundo,"  Cod*.  3,  38,  "com-  upon  divi- 
muiiia  utriusque  judicii  tarn  familire  erciscunAse  quam  commune  sion* 
dividundo."      As  regards  (2)  the  French  la\v,  compare  the  articles 
mentioned  in  note  36  ;  as  regards,  however,  the  nullity  pronounced 

in  Art.  17,  see  Art.  36,  of  which  it  is  the  consequence. 

41.  Veli  means  the  natural  guardian,  he  who  is  invested  with  Natural 
this  qualification  by  right  of  blood  relationship;  this  right  belongs  guardian. 
only  to  the  father  and  grandfather  ;  the  mother  is  not  veli,  but  the 

will  of  the  father  can  appoint  her  guardian. 

Vesi  is  the  guardian  named  by  will. 

Kaim  is  the  guardian  appointed  by  the  authority  when  there  Legal 
is  neither  veli  nor  vesi.     (Tornauw,  '  Mussulman  Law,'  page  290.)   guardian. 

42.  As  regards  Christian  minors,  see  the  Vezirial  order  "  On  the  Infants, 
Inventory  of  Christian  Estates,"  Leg.  Ott.  Vol.  I.,  No.  11,  p.  41  ;  as  lunatics> 
regards  the  provisions  of  Roman  law  relative  (1)  to  minors  in  case    C< 

of  division,  compare  the  Law  7  pr.,  Dig.  27,  9,  and  the  Law  17, 
Cod.  5,  71  :  (2)  to  the  mad  (furiosi)  compare  the  Law  2,  §  3,  Inst. 
1,  24  ;  Law  7  pr.,  §  3  ;  10,  §§  1,  13,  17,  Dig.  27,  10  :  and  (3)  to 
idiots  (fatui),  the  Law  2,  Dig.  3,  1  ;  Law  21,  Dig.  42,  5.  As 
regards  the  provisions  of  the  French  law  in  case  of  the  division  of 
property  belonging  to  minors,  see  Arts.  465,  466,  and  817  of  the 
Civil  Code;  and  Arts.  968,  984  of  the  Code  of  Civil  Procedure. 
As  regards  those  of  full  asre  who  are  in  an  habitual  state  of 
imbecility,  insanity,  or  mania,  and  who  are  assimilated  to  minors, 
see  Arts.  489  and  509  of  the  Civil  Code. 

43.  Land  where  the  Pernar  grows  (in  Albanian  toske,  prinari;  in  Pernallik. 
Greek,  prinari  or  priuos),  oak,  holm  oak,  a  small  kind  of  green  oak, 
Quercus  ilex  of  Linnaeus  ;   in  Italian  ilice,  c-lcina,  elec,  lecio.     There 


288  The  Ottoman  Land  Code. 

— 

is   also   another  kind  of  pernar — that  is,   the   oak  kermes,   the 
Quercus  coccifera  (Bclin). 

Right  to  44.  To  decide  according  to  Eoman  law  what  the  usufructuary  of 
cut  wood.  iand  may  take  from  a  wood,  which  is  part  of  it,  it  must  be  ascer- 
tained whether  it  is  a  copse  (sylva  casdua)  or  a  pasture  (sylva 
pascua).  According  to  the  Law  30,  Dig.  50,  16,  sylva  csedua  is  a 
wood  where  one  cuts  down  as  wanted ;  which,  after  having  been 
cut  even  with  the  ground,  reproduces  itself  from  the  stem  or  the 
roots,  and  pascua  sylva  is  a  wood  destined  to  be  food  for  cattle. 
The  usufructuary  may  then  cut  down  the  underwood  and  the  reeds, 
and  even  sell  them  (Lex  9,  §  7,  Dig.  7,  1),  and  especially  "  may  take 
props  and  branches  of  trees ;  but  in  a  wood,  not  a  copse,  may  take 
stakes  to  prop  up  his  vines,  provided  he  does  not  injure  the  land  " 
(Lex  10,  eod.).  But  if  the  trees  are  grown-up  forest  trees,  he  may 
not  cut 'them  down  :  "  sed  si'grandes  arbores  essent,  non  posse  eas 
csedere  "  (Lex  11,  eod.).  As  regards  the  usufruct  of  woods,  according 
to  French  law,  compare  Arts.  590-594  and  1403  of  the  Civil  Code  ; 
see  also  the  following  note  53,  Art.  28  modified,  and  Art.  30. 

45.  In  the  text  of  M.  Belin  there  is  the  word  "  only,"  which  we 
have  altered  to  the  word  "  also."  (See  the,  modern  Greek  translation 
inserted  in  the  Ottoman  Codes  of  M.  D.  Nicolaides,  page  434.) 

Rights  of  46.  "  In  re  communi  neminem  dominorum  jure  facere  invito 
partner.  altero  posse  "  (Lex  28-29 ;  Dig.  10,  3).  Compare  also  the  Law  13,  §  3, 
Dig.  43,  24,  according  to  which  "si  ex  sociis  communis  fundi  unus 
arbores  succiderit,  socius  cum  eo  hoc  interdicto  "  (that  is,  "  quod  vi 
aut  clam")  "experiri  potest,  cum  ei  competat,  cujus  interest." 
(See  Arts.  25  and  35,  note  68.) 

Limitation  47.  According  to  the  Roman  law,  the  time  prescribed  by 
of  actions.  Justinian  to  lose  the  usufruct  by  not  availing  of  it  or  not  profiting 
by  it  for  ten  years  between  persons  present  and  twenty  years 
between  absent  persons,  in  virtue  of  the  Law  16,  Cod.  3,  33, 
according  to  which  the  usufruct  cannot  be  lost  unless  they  oppose 
the  usufructuary,  on  grounds  with  which  the  owner  himself,  absent 
or  present,  might  be  repulsed  who  claimed  his  property.  As  to  the 
French  law,  compare  the  Arts.  2219-2261  and  Arts.  2265-2270 ; 
see,  however,  Art.  78. 

48.  That  is,  the  less  value  caused  by  the  use  that  may  have 


Notes.  289 


made  of  the  land,  the  deterioration   that  it   may  have  suff.  red  Wear  and 
(Belin)  as   regards  the  buildings,  or  plantations  of  vines,  and  trees  tear* 
arbitrarily  grown,  compare  hereafter  Art.  35. 

4;i.  Contrary  to    Koman  law,  by  which  the  usufructuary  of  any  No  claim 
land  whatsoever  interfered   with  in  his  occupation    or  plundered  for  ™esne 
violently  (dejectus)  lias  an  action  to  recover  all  the  produce  which  j^inst 
has    been  collected  (Lex  60,    Dig.  7,   1).      Everything    which   is  illegal 
part  of  the  usufruct  must  be  given  back  to  the  usufructuary,  who  occupier, 
lias  gained  his  suit  (Lex  5,  §  4).     As  regards  Frencn  law,  compare 
Arts.  548-550,  597,  and  613-614  of  the  Civil  Gode. 

50.  With    respect   to    this    jus    tollendi,    compare    the    Laws 
37,  38,  Dig.  6,  1 ;  and  Art.  555  of  the  French  Civil  Code.     (See 
Art.  35.) 

51.  In  conformity  with  the  precept  of  the  Eoman  law,  "  Nemo  Estoppel  of 
sibi  ipse  causam  possessions  mutare  potest "  ;  and  of  French  law,  lessee  or 
according  to  which  those  who  hold  for  another  can  never  obtain  by  borrower- 
prescription,  however  great  the  lapse  of  time.     Compare  Koman 

law,  Lex  33,  §  1,  Dig.  41,  3;  Lex  2,  §  ult.,  Dh.  41,  4  ;  Lex  1, 
Dig.  41,  6 ;  Lex  3,  §§  19,  20 ;  Lex  9,  Dig.  41,  2 ;  Lex  1,  6,  §§  2,  3, 
Di-.  43,  26 ;  Lex  23,  Cod.  4,  65 ;  Lex  5,  Cod.  7,  32 ;  also  French 
Liw,  Civil  Code,  Arts.  2236-2240. 

See  about  prescription  acquisitive  of  the  possession  (tesaruf)  of 
State  lauds,  Arts.  20  and  78. 

52.  Kishlak,  place  for  encampment,  commonage,  and  pasture  ( f  Yaylak  ; 
beasts  during  winter ;  yaylak,  the  opposite  of  the  preceding,  place  of  Kl*hlak. 
encampment  and  feeding  for  animals  during  summer  (Belin). 

53.  According    to    the    Eoman    laws,   the    usufructuary    may  Conversion 
improve  the  thing  (see  note  27),  but  on  condition  that  he  shall  illegal, 
not  change  its  form  ;  this  is  the  reason  why,  "  if  the  land  is  a 

simple  pleasure-ground  where  there  are  groves,  walks,  or  alleys 
shaded  by  barren  trees,  he  mtist  not  destroy  them  to  replace  them 
by  fruit  trees,  or  substitute  pleasure  gardens  by  kitchen  gardens 
which  produce  revenue  "  (Lex  13,  §  4,  Dig.  7, 1).  Compare  French 
Civil  Code,  Art.  578. 

54.  By  virtue  of  the  law  of  accession,  and  this  because  "  arborem  Things 
in  fundo  continentur,  non  est  separatum  corpus  a  fundo  "  (Lex  planted. 

U 


2  QO 


The  Ottoman  Land  Code. 


40,  Dig.  19, 1).     Compare  also,  on  the  right  of  accession,  Arts.  551, 
552  and  555  of  the  French  Civil  Code. 

55.  See  note  50.     As  to  joint  owners,  see  Art.  26. 

Palamud.         56.  In  Greek  /SaXavos ;  in  French  gland,  vallonee  (valonea) ;  in 
Arabic  bellout ;  in  Turkish  pilit  and  palamout. 

Gurgen.  57.  The  yoke  elm,  Carpinus  betulus  (Belin). 

58.  Oak,  Quercus  robur  (Belin). 

59.  See  note  54,  find  the  note  following. 

Forests.  60.  According;  to  the  Forest  law,  dated  "11.  Sheval,  1286"  (1 

January,  1870),  the  forests  of  the  Ottoman  Empire  are  divided  into 
four  categories :  (1)  The  forests  belonging  to  the  State,  (2)  those 
depending  on  the  Evkaf,  (3)  the  communal  forests  or  Baltalyks, 
(4)  the  woods  and  forests  of  private  individuals.  All  that  concerns 
the  woods  and  forests  of  the  last  category  having  been  provided  for 
in  the  Ottoman  Rural  Code  (see  note  &  in  fine),  the  provisions 
of  the  present  regulations  are  not  applicable  (Art.  1  of  the  regula- 
tions in  question,  classed  in  the  .Administrative  law,  Leg.  Ott.  Vol. 
II.).  See  also  the  law  on  the  extension  of  the  right  of  Inheritance, 
Art.  5,  in  virtue  of  which  the  provisions  of  the  Law  are  kept  in 
force).  Nevertheless,  these  provisions  relative  to  forests,  miriye, 
held  by  private  persons  have  been  in  part  repealed,  in  part 
modified,  by  an  Imperial  order  annulling  the  principle  of  the  right 
of  accession  legalised  by  Art.  29  of  the  Code  ;  herewith  the  official 
note  inserted  in  the  said  regulations. 

Repeal  of         "According  to  the  Ottoman  Rural  Code,  trees  growing  naturally 

injurious      on  gtate  ian(js  (arazj  mi,^)  belong  to  the  State,  and  the  holder  of 

ms>   the  ground  must  indemnify  it  for  the  value  of  the  wood  which  he 

gets.     This  regulation  being  prejudicial  to  the  owners  of  the  lands, 

and  causing  depreciation  of  agricultural  property,  all  the  articles  of 

the  Rural  Code  which  created  these  rights  of  the  State  on  the  said 

trees  have  been  repealed  by  Imperial  Ordinance  dated  16.  Sheval, 

1286  (6/18  January,  1870)." 

61.  See  Arts.  25,  26,  and  28. 

62.  Mubah,  abandoned  to  the  first  occupier  (Belin),  consequently 
viva  derelicta.    See  Arts.  103-105. 


Notes.  291 

63.  The  provisions  of  Art.  MO,  that  "  the  standing  value  of  the  Right  to 
-  cut  down  shall  Ix;  paid,  for  account  of  the  Miri,  that  is  the  tn"ber. 

State,"  appears  to  have  beoii  modi  tied  in  consequence  of  the  abolition 
of  the  right  of  the  State  to  these  trees.  See  note  60. 

64.  Si-o    Art.    _•">,  about   the   planting   of  vines  or  fruit   trees.  Xew  build- 
:'diii'jc  to  the  Roman  law  the  usufructuary  could  ~3ot  even  erect  *n&s- 

a  ne^v  building  unless  it  were  necessary  for  storing  the  fruits  of  the 
crop  (Lex  13,  §  6,  Dig.  7,  1).  See  the  following  article. 

Co.  See  the  preceding  note. 

66.  Place  of  the  mill-stone,  a  space  of  ground.     Area,  or  circular  Threshing- 
space  where  the  grain  is  piled  up  in  stacks  after  the  harvest ;  some-  floors, 
times  threshing  the  corn  is  done  there.     The  Khirmen  yeri   is 

always  barren  ground  (Ami  Boue  and  Belin,  Is'o.  334,  p.  144). 

67.  Vines  planted  on  the  ground  of  another  become  part  of  the  CKvnership 
ground,  and,  if  they  have  been  planted  by  a  holder  of  bad  faith,  he  °*  vines- 
cannot  even  get  back  the  expenses  he  has  gone  to  in  this  respect 

(Lex  1,  Cod.  de  rei  vindicatione  in  fragm. ;  Cod.  Gregor.).  Respect- 
ing the  jus  tollendi  of  the  owner,  see  also  Art.  22  and  note  50. 

68.  If  an  individual  has  built  a  house  on  ground  belonging  to  Rights  of 
him  and  to  you,  right  requires  that  it  should  be  common  to  both  joint 
(Lex  16,  Cod.  3,  32) ;  but  if  he  who  has  built  was  acting  in  good  owners- 
faith,  the  claiming  a  part  of  the  house  is  allowable  on  condition  of 
paying  half  the  expenses  (Lex  16,  eod.).     See  Arts.  15-19.     In  case 

the  buildings  or  plantations  have  been  made,  not  on  the  whole  of 
the  joint  land,  but  on  certain  parts,  they  shall  make  a  division  (see 
the  Art.  in  fine).  In  the  case  of  grafts,  see  Art.  20. 

69.  In  the  Greek  translation  of  the  code  in  question  the  text  of  Erection  of 
§  3  is  translated  as  follows: —  buildings, 

"  If  the  value  of  these  buildings,  once  pulled  down,  and  of  these  &C-'  ?l'°,n 
trees,  rooted  from  the  soil,  exceeds  that  of  the  land  which  is  covered  }an(j. 
by  them,  the   individual  who   proves   his  right  to   the  soil  will 
receive  its  just  value,  and  the  buildings  and  trees  in  questi-  n  a  ill 
remain  in  the  hands  of  their  owner.     But  if  the  ground  is  valued  at 
more  than  the  buildings  and  the  trees, .then   the  value   of  the<e 
H  things  will  be  calculated  as  if  they  were  pulled  down  or  n  oted  up, 
and  the  owner  will  be  compensated  according  to  this  value,  whilst 

U   '1 


29 2  The  Ottoman  Land  Code. 

.  ,  — — ^ — , —  ^ 

the  trees  and  buildings  will  become  the  property  of  the  person 
who  has  proved  his  right  to  the  lan<i."  (See  the  Ottoman  Codes 
by  M.  D.  Nicolaides,  page  438.)  As  regards  that  the  claimant 
mv.st  be  ready  to  restore  to  the  owner  who  is  acting  in  good  faith, 
under  pain  of  forfeiture  of  his  claim  according  to  Roman  law,  it  is 
necessary  to  compare  the  Law  38,  Dig.  6,  1,  of  which  here  is  the 
translation  : — "You  have  built  or  sown  on  ground  which  you  had 
imprudently  bought  from  some  one  to  whom  it  did  not  belong  ; 
your  seller  hasc  been  evicted  subsequently  by  the  true  owner.  A 
just  judge  will  act, in  this  respect  according  to  the  persons  and 
circumstances.  Let  us  suppose  that  the  owner  had  done  the  same 
thing  that  you  have,  he  must,  to  enter  into  possession  of  his  land, 
take  into  account  your  expenses,  but  only  so  far  as  you  have 
improved  his  land ;  but  if  you  have  spent  more  than  his  land  is 
worth,  he  will  pay  you  only  your  expenses.  Let  us  further  admit 
that  he  is  poor,  then  it  will  suffice  that  he  allow  you  to  take  away 
all  that  you  can  take  away,  provided  also  that  his  land  does  not- 
become  of  less  value  than  it  had  before  the  building  which  you 
have  erected."  As  regards  French  law,  you  must  compare  the 
Art,  555  in  fine  of  the  Civil  C  >de,  of  which  this  is  the  text :— "  If 
the  plantations,  buildings,  and  works  have  been  done  by  a  third 
evicted  party,  who  has  not  been  condemned  to  the  restitution  of  the 
profit,  on  account  of  his  good  faitb,  the  owner  cannot  demand  the 
destroying  the  works,  plantations,  or  buildings,  but  he  will  have 
the  option  of  paying  the  value  of  the  materials  and  the  wages  of  the 
workmen,  or  to  pay  an  amount  equal  to  the  increased  value  of  the 
ground." 

However,  according  to  Eoman  law,  it  has  been  decided  also  that 
if  the  proprietor  is  ready  to  give  to  the  owner  the  sum  which  this 
latter  coutd  realise  by  taking  away  all  that  he  had  added  to  the 
land,  he  would  be  allowed  to  do  it ;  for  one  must  not  lend  a  hand 
to  the  malignity  of  landowners.  (Compare  the  said  Law  38, 
Dig.  6,  1.) 

70.  See,  as  regards  the  communio  possessionis,  Arts.  15-19,  §  2, 
35,  and  41-43. 

Alienation        71.  "  Firagh,"  abandon.    This  word  is  often  joined  in  the  hudjets 

by  sale,  &c.  to  the  word  teslim,  "  consignation."     It  corresponds  exactly  (says 

M.  Belin)  to  the  "traditio"  of  Koman  law;  but  we  can  say  that  it 


Notes.  293 

•lier   to   the   term    "alienatio,M   which    signifies   in  Alienation 
:il   an    act    by   which  a   person    tran.-ters  to   another   a    right  "***"»  "^ 
•  ..liini,  ami  that  because  the  "traciitio"  maybe  considered 

rtain  form  of  tl  -ent  relative  to  the  transfer  of  the 

property,  but  not  in  all  cases  like   the  agreement  itself.     The  in- 

"f  the  expression  of  §  10,  Instir.  -,  1,  to  which  perhaps 

in    alludes,  is  expressly  acki:  u.    the  Law  31  pr., 

:  ling  to  wliich  "nunquam  nuda  tra-litio  trans:ert 

dominium,  sed  ita  si   vemiitio  aut  aliqua  justa  caasa  prsecesserit, 

propter  quam  traditio  sequeretur."     The  sense  then  of  the  term 

i"  consists  in  the  alienation  between  living  persons  by  a 
contract  of  sale,  exchange,  or  gratuitously,  not  of  the  property  of 
the  land,  which  belongs  to  the  State  (note  (a),  Art.  25),  but  of  the 
right  of  enjoying  it  ('•dominium  utile  "  or  "  dominium  ususfructus ") 
which  belongs  to  the  possessor,  and  which  is  nothing  more  than 
jus  in  re  alieua ;  that  is  to  say,  a  right  to  the  property  of  another 
for  obtaining  which  the  consent  of  the  contracting  parties  and  the 
permission  of  the  competent  authority  are  sufficient  (Arts.  36-37). 
See  note  76.  In  the  Greek  edition  of  the  Ottoman  Codes  this 
word  has  been  translated  by  the  term  irapax&prjo-is — that  is  cession 
(page  438),  a  term  which  M.  Belin  also  has  employed  in  the 
rubric  of  Book  I.  As  regards  the  term  "  sale,"  it  must  be  observed 
that  it  is  improper  on  account  of  the  act  of  donation,  which  is 
contained  in  the  term  "  firagh."  However,  in  the  Roman  laws  the 
terms  "  alieuatio  "  and  "  venuitio  "  are  identified :  "  emptionis  verbo 
omuem  alienationem  complexa  videretur"  (Lex  29,  §  1,  Dig.  40,  7. 
Compare  also  Law  55,  Dig.  18,  1 ;  Lex  55,  Dig.  44,  7  ;  Lex  109, 
Dig.  50,  16). 

72.  See   Art.  55,  modified  and  continued. 

73.  See  Art.  59,  modified  and  following. 

74.  According  to  the  Greek  translation :  "  In  the  same  way  for  Exchange, 
the  exchange  of  lands,  the  permission  of  the  functionary  ad  hoc  is 
indispensable  "  ( the  Ottoman  Codes,  page  438).     As  regards  the 

fees  to  be  paid  in  the  case  of  Exchange,  compare  Art.  7  of  the 
Tapu  Law. 

75.  "  It   is  certain  that  consent  must  have  place  in  sales  and 
purchases ;  besides,  when  the  parties  are  not  agreed,  either  on  the 


294  The  Ottoman  Land  Code. 

. : 1 , 

Consensus    sale,  the   price,  or   any   other   point   the  purchase   is   imperfect " 

'^rtie™  °f  ^LeX   9>    Dig'    18'  1^'      A1SO>    " SlVe   venditio'    sive  donatio>    sive 
quselibet  alia  causa  contrahendi  fuit,  nisi  animus  utrinsque  consentit 

perduci  ad  effectual  id  quod  inchoatur  non  potest "  (Lex  55,  Dig. 
45,  1).  Also,  especially  as  regards  donations, "  non  potest  liberalitas 
nolenti  adquiri " — liberality  cannot  be  acquired  against  the  will  of 
the  giver  (Lex  19,  §  2,  Dig.  39,  5  ;  and  Lex  10,  eod.).  About  the 
consent  of  the  buyer  or  the  "  copermuter  "  in  French  law,  compare 
Arts.  1108-1112,  1582-1583,  and  1703.  As  regards  donation? 
between  living  persons,  they  do  not  bind  the  donor,  and  have  no 
effect  but  from  the  day  that  they  have  been  accepted  in  express 
terms  (Art.  932  of  the  Civil  Code).  Compare  also  Arts.  893,  894, 
and  931-966  of  the  same  Code.  With  regard  to  the  procedure  to  be 
followed  and  the  fees  of  registration  and  other  expenses  for  drawing 
out  the  title-deeds,  compare  the  Tapu  Law,  Arts.  1-4,  6,  7,  9,  10, 
and  14. 

Delivery  of  76.  Consequently  the  delivery  of  the  land  into  the  power  of  the 
possession  kUyer  does  not  appear  to  be  indispensable  for  acquiring  the  right  of 
ess<  possesbion  by  this  person  as  regards  the  seller,  and  this  in  ac- 
cordance to  French  law,  according  to  which  "the  sale  is  perfect 
between  the  parties,  and  the  property  belongs  by  right  to  the  buyer 
as  regards  the  seller  as  soon  as  they  have  agreed  on  the  thing,  and 
the  price,  although  the  thing  has  not  yet  been  delivered  nor  the 
price  paid  "  (Art.  1583  of  the  Civil  Code).  However,  as  regards 
third  parties,  the  law  of  the  23rd  March,  1855,  has  re-established 
the  necessity  of  the  transcription  at  the  office  of  Hypothecation  of 
all  acts  between  living  persons  relative  to  the  transfer  of  immov- 
able property  or  real  rights  susceptible  of  being  hypothecated,  a 
system  which  was  in  force  before  the  Code.  Compare  Art.  1  of  the 
said  law,  and  Art.  3,  according  to  which  until  the  transcription,  the 
rights  resulting  from  the  acts  (already  mentioned)  cannot  be 
opposed  to  third  parties  who  have  claims  on  the  immovable,  and 
who  have  maintained  them  by  conforming  to  the  laws.  As  regards 
Roman  law,  notorious  is  the  rule,  "  traditionibus  dominia  rerum,  non 
nudis  pactis  transferantur  "  (Lex  20,  Cod.  2,  3)  ;  that  is,  property 
by  delivery  can  be  transferred,  and  not  by  naked  agreements.  How- 
ever, we  must  observe  that  the  object  of  the  transmission  in 
question,  is  not  the  property,  but  the  jus  in  re  aliena;  but  for 


Notes.  295 

obtaining  such  a  riiiht  on  tlie  property  of  others,  the  delivery  was 
not  in  all  cases  indispensable  even  in  Human  law. 

77.  In  conformity  to  French  law,  according  to  which  if  the  buyer  Purchase- 
lias  not  paid  the  price,  the  seller  can  demand  the  cancelling  of  the  money. 
sale  (Art.  U;.~>  1  <>f  the  Civil  Code;  compare  also  Art.   Hi;Vi-l  <;.-,(;, 

and  the  law  of  23rd  March,  1855,  on  transcription).  As  regards 
Roman  law,  "a  suit  to  cancel  a  sale  is  not  granted  to  annul  a 
perfect  sale,  but  only  to  pay  the  price  of  the  sale,  unless  it  has  been 
specially  agreed  in  the  contract"  (Lex  6,  Cod.  4,* 49).  Also,  "if 
you  have  really  sold  and  not  donationis  causa«your  vines  "  (says  an 
imperial  rescript), "  and  that  the  price  of  them  has  not  been  paid,  you 
have  an  action  to  sue  for  the  payment  but  not  the  return  of  the 
vines,  which  you  have  delivered "  (Lex  7,  Cod.  4,  38).  Compare 
also  Lex  3,  Cod.  4,  44;  Lex  7,  Cod.;  but  if  the  sale  has  been 
stipulated  with  the  binding  clause,  (lex  commissoria)  that  is,  by 
which  the  seller  and  the  buyer  agree  that  the  sale  shall  be  cancelled 
if  the  price  is  not  paid  within  a  fixed  time — in  this  case  the  cancelling 
can  be  demanded  by  the  seller.  "  If  a  piece  of  land  has  been  sold 
with  the  binding  clause,  it  is  better  to  decide  that  the  sale  shall  be 
cancelled  upon  condition,  than  to  say  it  was  conditional."  Compare 
generally  chapter  III.  of  Book  XVIII.  Dig.  de  lege  commissoria ; 
compare  also  Art.  1656  of  the  French  Civil  Code. 

78.  However,  the  definitive  alienation  can  be  annulled  or  decided  Voidability 
in  the  following  cases  : — A.  It  can  be  annulled  (a)  in  favour  of  the  of  sale, 
seller  on   account  of  force  (see  Art.  113) ;  (&)  in  case  it  has  been 
stipulated  on  conditions   considered  illegal  by  common  law  (the 
religious  law)  (see  Art.  114)  ;  (c)  in  case  of  legal  incapacity  of  one  of 

the  contracting  parties,  that  is  to  say,  in  the  alienation  or  acquisition 
of  lands  by  minors,  insane,  o'r  imbeciles  (see  Arts,  50,  51)  ;  or  (f?)  in 
case  of  the  alienation  of  lands  by  their  guardians  or  trustees  except 
by  judicial  permission  (see  Arts.  52,  53);  (e)  in  the  case  of  aliena- 
tion by  a  third  party  or  a  joint  holder  without  an  order  ad  hoc  from 
the  owner  (see  Art.  43),  the  annulment  can  be  allowed  (f)  in  favour 
of  third  parties  in  consequence  of  an  action  claiming  the  land  from 
the  buyer,  founded  on  a  certain  right  of  preference  (jus  TT-pori/^o-eoo?) 
sanctioned  bylaw  :  that  is,  in  favour  (L)  of  the  joint  holder  (see  Art. 
41)  or  the  joint  holders  (see  Art.  42)  (2)  with  the  proprietor  of  the 
trees  or  buildings  on  the  land  possessed  by  others  (see  Art.  44) ; 


296  The  Ottoman  Land  Code. 

_  ,_  ^ 

(3)  of  the  inhabitant  of  the  same  village  (see  Art.  45),  but  of  the 
neighbour  as  such  (Art.  46).  B.  The  alienation  may  be  annulled  or 
decided  (a)  on  account  of  deceit  or  fraud  as  to  actionable  defects  (see 
Art.  119)  ;  (6)  in  the  case  of  repurchase  (pactum  de  retrovendcndo) — 
that  is,  of  a  sale  made  by  the  debtor  to  his  creditor  in  exchange  or 
as  security  for  his  debt  on  condition  of  claiming  the  restitution 
of  the  land  after  the  payment  (see  Arts  116-118  modified) ; 
(c)  in  case  of  non=payment  of  the  price  (see  preceding  Art.  38). 
As  regards  donations  "  mortis  causa,"  see  Arts.  120, 121.  As  regards 
specially  donations  to  foreign  subjects,  compare  Arts.  4,  5  of  the 
law  granting  to  foreigners  the  right  of  holding  landed  property  in 
the  Ottoman  Empire. 

Second  sale      79.  Because,  after  a  first,  valid,  and  definitive  sale,  a  second  sale 
void,  cannot  but  be  considered  as  a  sale  of  land  belonging  to  another 

person  (see  Art.  43).  As  regards  the  Eoman  law,  compare  the  Law 
19,  §  9,  Dig.  19,  2;  compare,  however,  the  Laws  9,  §  4,  Dig.  6,  2, 
and  31,  §  2,  Dig.  19,  1.  As  regards  French  law,  see  Arts.  1583  and 
1599,  compared  with  the  law  on  transcription  of  acts  transferring 
property  or  real  rights  mentioned  in  Note  76. 

Unauthor-  80.  In  accordance  with  the  French  Civil  Code,  according  to 
bed  deal-  wnich  "  the  sale  of  a  thing  belonging  to  another  is  void,  it  can  give 
rise  to  a  claim  of  damages  when  the  buyer  has  ignored  that  tl.e 
thing  belonged  to  another  ''  (Art.  1599).  Nevertheless,  according 
to  Roman  law,  "it  is  certain  that  one  can  alienate  the  things  of 
another,  because  there  is  a  buying  and  selling;  but  in  this  ease 
the  buyer  may  be  deprived  of  the  thing  sold  "  (Lex  28,  Dig.  18,  1), 
probably  because  the  delivery  made  in  virtue  of  such  a  sale,  valid 
as  a  bare  agreement,  does  not  transmit  to  the  buyer  a  property 
which  the  seller  did  not  possess. 

As  regards  the  confirmation  of  the  sale  by  the  owner,  compare 
the  Law  38,  §  1,  Dig.  24,  1.  See,  however,  the  Law  9,  §  2,  Dig. 
39,  5  ;  Lex  3,  Cod.  3y  32  ;  Lex  4,  Cod.  4,  51 ;  Lex  12,  §  4,  Dig.  46,  3  ; 
Lex  60,  Dig.  50,  17.  As  regards  the  case  of  an  arbitrary  sale  by  a 
joint  owner,  the  buyer  evicted  from  the  portion  of  the  land 
belonging  to  the  co-proprietor  had  a  right  of  action  for  damages 
against  the  seller. 

"If,  being  older  than  25  years"  (says  a  rescript  of  the  Emperors       < 
Diocletian  and  Maximianus),  "  you  have  sold  as  your  own  property 


Notes.  297 

• 

lands    which    were    joint    property    with    your    brothers,    to    an  Unauthnr- 
individual   who  was  ignorant  of  it,  although  you  may  have  made  )zed  de.a1' 
no  document,  or  that  you  have  not  specially  agreed  to  anything  in   °     W1 


this  IT  •;•  purchaser  having  been  evicted  from  a  part  of  the 

-•Id,  you  owe  him  a  compensation  relative  to  the  interest  he 
had  not  t<>  be  BO"  (Lex  liu.,  de  communium  rerum  alienatione,  C"d. 
4,  52).  As  to  the  case  of  tacit  acknowledgment  of  the  sale  by  the 
joint  proprietor,  the  Law  12,  Dig.  21,  2,  gives  an  example:  "An 
heir  appointed  to  one-half  has  sold  all  the  hereditary  property,  and 
his  joint-heirs  have  received  the  price  of  it.  The  purchasers  have 
all  been  evicted.  It  was  asked  whether  tne  joint  heirs  of  the 
seller  could  be  sued  for  the  purchase.  I  replied  "  (says  the  Juris- 
consult Scsevola)  "  that,  if  the  joint  heirs  had  been  present  and  did 
not  dissent  (si  prasentes  adfuerunt  nee  dissenserunt),  each  of  them 
•onsidered  to  have  so'd  his  portion."  As  regards  acts 
recognizing  expressly  or  tacitly  a  sale  null  by  French  law,  compare 
Arts.  1337-1340,  19b8,  and  1998  of  the  Civil  Code.  Compare  at  the 
end  the  Tapu  Law. 

81.  See  notes  78  and  83. 

82.  See  notes  78  and  83. 

83.  Besides  the  right   of  preference    (jus  TrpoTip'jo-fcos}  about  Xo  pre- 

a   voluntary  sale  made  by  the  owner  (Arts.  41-42,  44,  45,  and  eruption  by 

note  78),  there  is  also  another  category  of  right  of  preference  for  the  a  Jac^n 

acquisition  of  lat  d  in  the  case  of  death  of  the  owner  without  legiti- 

mate heirs;  that  is,  thejusprotimeseos  of  parents  and  other  persons, 

about   which   compare   Art.   59   modified.      In   the   Roman   law, 

except  in  the  case  of  a  cliuse  of  a  right  of  conventional  preference, 

such  a  jus  Trport/Liiio-ea)?  is   also  sanctioned  by  virtue  of  a  dispo- 

sition of  the  law  in  favour  of  the  proi  rietor  in  the  case  of  a  sale 

of  the  right  of  emphyteusis,  and  in   favour  of  other  persons  in 

different  other  cases,  regarding  whom  compare  the  Law  3,  Cod.  4, 

66,  16  ;  Dig.  42,  5,  60  ;  Dig.  2,  14  ;  1  Cod.  11,  6  ;  14  Cod.  4,  38. 

As  regards  the  right  of  preference  of  the  neighbour  to  land  (mulk) 

according  to  the  common  Ottoman   law,  compare  above,  Art.  2, 

page  2.      The  rights  of  preference  of  the  Ottoman  rights  corre- 

spond exactly  to  various  kinds  of  Naiierrechts  (or  Re;ractsrechts, 

Einstandesrechts)  of  German  law.      According  to  the   particular 

legislation  which  governs  immovable  property  in  the  various  States 

of  the   German   Empire,  it  is  established  in  favour  of  the  joint 


298  The  Ottoman  Land  Code. 

^ 

owner,  of  the  neighbour,  of  the  parish,  or  of  the  inhabitant  of  the 
same  commune,  of  the  near  relation,  &c.,  a  right,  in  virtue  of 
which  they  can  attack  the  sale  made  by  their  joint  proprietor, 
neighbour,  &c.,  with  a  third  party,  and  after  the  delivery  of  the 
land  take  it  from  the  hands  of  the  buyer  on  paying  the  price. 
Thus  then  (1)  the  jus  Trport/^o-ecos-  of  the  joint  owner  corresponds 
to  "retractus  ex  jure  condominii "  (Ketrakt  auf  Grund  des  Mit- 
eigenthums),  withdrawal  on  account  of  joint  property  ;  (2)  the 
right  of  the  inhabitant  of  the  same  commune  corresponds  to 
"retractus  ex  jure  incolatus"  (Marklosung  Biirgerretrakt) ;  (3)  the 
right  of  the  neighbour  which  is  in  force  only  as  regards  Mulks 
corresponds  to  "retractus  ex  jure  vicinatus "  (Nachbarlosung, 
Nachbarrecht)  of  German  law  on  the  one  hand,  and  the  Greco- 
Koman  law  on  the  other  ;  (4)  the  right  of  the  parents  can  in  some 
way  correspond  to  the  Erblosung  of  the  German  law.  But  we  must 
observe  that  the  prerogative  rights  of  an  ancient  epoch  have  been 
abolished  in  certain  States  on  account  of  the  obstacle  which  they 
opposed  to  the  security  of  transactions  concerning  immovable 
property. 

84.  See  below,  Art.  131. 

Mistake  as  85.  According  to  Eoman  law,  if  an  individual  has  sold  a  field 
to  area.  which  he  declared  contained  18  acres  (jugera),  stipulating  a  price 
for  each  measured  acre,  he  must  pay  for  twenty  if  there  be  twenty 
(Lex  40,  §  2,  Dig.  18,  1).  But  if  the  measure  of  the  field  be  less, 
the  seller  is  bound  as  to  the  number  of  the  acres ;  for,  since  there  is 
a  deficit  in  the  measure,  it  is  not  possible  to  estimate  the  quality  of 
the  land  which  is  missing.  But  not  on-ly  can  one  act  against  the 
seller  where  the  measure  of  the  whole  field  is  short,  but  one  can 
also  sue  him  for  the  parts,  as,  for  example,  if  it  has  been  said  that 
there  were  so  many  acres  of  vines  or  of  olive  trees,  and  there  is  less 
of  them.  That  is  why,  in  this  case,  as  regards  the  quality  of  the 
ground,  they  will  estimate  what  is  missing  according  to  what  exists 
(Lex  4,  §  1,  Dig.  19,  1). 

Thus  then,  as  regards  the  estimation  of  the  deficit  in  the  measure, 
they  examine  the  price  at  which  each  declared  acre  was  sold,  and 
they  give  the  same  price  to  each  of  those  that  are  missing  (Lex  69, 
§  6,  Dig,  21,  2). 

(B.)  According  to  the  French  Civil  Code,  "  The  seller  is  bound  to    4, 
deliver  the  extent  such  as  is  mentioned  in  the  contract"  (Art. 


Notes.  299 


.     Thus,  "  if  the  sale  of  an  immovable  has  been  made  with  Mistake  as. 
an  indication  of  its  measurement  at  so  much  the  measure,  the  seller  to  aiea 
is  obliged   to  deliver  to  the  buyer,  if  he  require  it,  the  quantity 
indicated  in  the  contract ;  and  if  he  cannot  do  it,  or  if  the  buyer 
does  not  demand  it,  the  seller  is  obliged  to  suffer  a  prop  -rtional 
diminution  of  the  price  "  (Art.  1617) ;  "  but  if,  on  the  contrary, 
there  is  a  larger  extent  than  that  stated  in  the  contract,  the  buyer 
has  the  choice  of  giving  the  supplement  of  the  price,  or  to  break 
the  contract  if  the   excess   is   one-twentieth   above   the   declared 
contents  "  (Art.  1618). 

86.  A.  According  to  Ecman  law  in  this  case,  the  seller  not  only 
cannot  retain  what  is  found  to  be  more  than  he  had  declared,  but 
he  is  also  oUiged  to  guarantee  it  to  the  buyer  in  case  of  eviction 
from  that  part.  He  who  in  selling  a  piece  of  land  of  100  acres 
has  given  boundaries  more  extended  to  the  buyer  (fines  multo 
ampliua  emptori  demonstraverat),  if  the  purchaser  were  evicted 
from  part  of  these  limits,  he  must  indemnify  him  for  it  accord- 
ing to  the  value  of  that  part,  even  when  the  hundred  acres  which 
he  may  have  purchased  remained  in  his  hands  (Lex  45,  Dig.  21,  2  ; 
compare  also  Lex  38  pr.,  Dig.  19, 1).  B.  According  to  the  French 
Civil  Code,  except  in  the  case  mentioned  in  the  preceding  note,  in 
all  the  other  cases — whether  the  sale  be  for  a  certain  and  limited 
quantity,  whether  it  have  for  its  object  separate  and  distinct  pro- 
perties, whether  it  commences  by  the  measure,  or  by  the  designa- 
tion of  the  object  sold  followed  by  the  measure,  the  naming  this 
measure  gives  no  cause  for  any  increase  of  price  in  favour  of  the 
seller  for  the  excess  of  measure,  nor  in  favour  of  the  purchaser  for 
any  diminution  of  the  price  for  the  de6cient  measure,  except 
inasmuch  as  the  difference $>i  the  real  measure  from  that  mentioned 
in  the  contract  is  one-twentieth  more  or  less,  having  regard  to  the 
value  of  the  totality  of  the  objects  sold,  if  there  be  no  contrary 
stipulation  (Art.  1619).  However,  in  this  case  of  augmentation  of 
price  "the  purchaser  ha»  the  choice  of  withdrawing  from  the 
contract  or  of  paying  the  supplementary  price,  and  this  with 
interest  if  he  has  kept  the  immovable"  (Art.  1620).  With  regard  Actions  as 
to  actions  to  this  effect  which  "  must  be  taken  in  one  year  from  the  to  mistake 
date  of  the  contract  under  pain  of  forfeiture,"  see  Art.  1622  (com-  m  area' 
pare  also  Art.  1621).  As  regards  the  sale  of  two  grounds  by  the 
same  contract  for  one  and  the  same  price,  compare,  as  regards  Roman 


300  The  Ottoman  Land  Code. 

Law,  the  Law  42,  Dig.  19,  I ;  and  as  regards  French  law.  Art.  1623 
of  the  Civil  Code. 

Timber,  87.  "  Ratio  enim  non  permittit  ut  alterius  arbor  esse  intelligatur, 

quani  cujus  in  fundum  radices  egisset"  (§  31,  Inst.  2,  1;  French 
Civil  Code,  Art.  551 ;  and  note  54  and  Art.  28).  Thus  "  fundi 
nihil  est,  nisi  quod  terra  se  tenet  " — nothing  forms  part  of  a  piece  of 
land  but  what  holds  to  the  piece  of  land  (Lex  17  pr.,  Dig.  19,  1) ; 
it  is  thus  that  worked  timber  (ligna)  belongs  to  the  seller  because 
it  docs  not  form' part  of  the  ground,  although  it  may  have  been 
worked  to  be  employed  in  it  (Lex  17,  §  2,  eod.).  The  props  for  the 
vine  do  not  form  part  of  it  until  they  are  used  (Lex  17,  §  11,  eod.). 
Nevertheless,  it  is  asked  whether,  in  case  the  seller  and  buyer  have 
contracted  when  the  buyer  had  not  seen  the  land,  the  object  of 
their  contract,  the  seller  is  bound  to  deliver  to  him  the  trees  which 
have  been  blown  down  since  then  by  a  hurricane. 

It  is  replied  that  he  was  not  obliged  to  do  it,  the  buyer  not 
having  purchased  them,  since  they  had  ceased  to  form  part  of  the 
land  before  the  contract;  but  if  the  buyer  was  ignorant  of  the  trees 
having  been  blown  down,  and  that  the  seller  knew  it,  but  had  not 
informc-d  him  of  it,  there  was  reason  to  estimate  whether  the  thing 
was  part  of  the  sale  (Lex  9,  Dig.  18,  6).  According  to  the  French 
Code,  the  obligation  to  deliver  the  thing  includes  its  accessories, 
and  everything  destined  to  its  perpetual  use  (Art.  1615).  Thus, 
"  the  thing  must  be  delivered  in  the  state  in  which  it  was  at  the 
moment  of  the  sale."  From  that  day  all  the  profit  belongs  to  the 
buyer  (Art.  1614). 

Ownership  88.  "  Quintus  Mucius  scribit :  dominus  fundi  de  pra^dio  arbores 
of  trees.  stantes  vendiderat  et  pro  his  rebus  pecuniam  accepit  et  tradere 
nolebat ;  emptor  quajrebat,  quid  se  face^e  opporteret,  et  verebatur, 
ne  hse  arbores  ejus  non  videretur  factffi.  Pomponius:  arborum, 
qua3  in  fundo  coiitinentur,  non  est  separatum  corpus  a  fundo  et 
ideo  ut  domiuus  suas  specialiter  arbores  vindicare  emptor  non 
poterit;  sed  exempto  habet  actionem"«(Lex  40,  Dig.  19,  1).  As 
for  what  is  relative:  (1)  Trees  become  mulk;  that  is,  entire 
property  of  the  owner  of  the  laud  (compare  Arts.  25,  26,  29). 
(2)  As  regards  the  isale  of  these,  Art.  49  ;  and  (3)  as  regards  the 
right  of  preference  to  land  to  be  sold,  Art.  44. 

89.  See  the  preceding  note  in  fine. 

90.  According    to  the  Roman  law,   "pupillus    vendendo    sine 


Notes.  301 


tutoris  anctoritate  non  obligator"  (Lex  5,  §  1,  1>L'.  2U,  8),  "quia  Sale,  &c., 

sinr  tutoris  uuctoritate  nihil  alienare  jxjtest  "(U.'\  «»  pp.,  <j.id.).     Also  j'.v  1"t:lllt-. 

lunatics, 
minors  in  general   cannot,  without   the  consent  of  their  trustees,  &c 

conclude  any  au'reom>'nt  of  sale  (Lex  3,  Cod.  2,  22).  As  regards 
insane  and  imbecile:  "  furiosura  sive  stipuletur,  sive  promittaf, 
nihil  agere  natura  manilV'stum  est"  (Lex  1,  §  12,  Dig.  44,  7), 
because  "  furiosus  nullum  ne<zotium  gerere  potest,  quia  non 
iutellunt  quid  agit"  (8  Inst.  3,  19).  Compare  also  Lex  5,  Dig.  50, 
17;  Lex  1,  §  3 ;  Lex  18,  §  1,  Dig.  41,  2;  Lex  1,^  12,  Dig.  47,  7. 
According  to  French  law,  "the  incapable  of  Contracting  are  minors 
and  the  interdicted"  (Civil  Code,  Arts.  1124,  1125);  that  is,  those 
who,  on  account  of  their  habitual  state  of  imbeciliry,  of  insanity 
and  mania,  are  judicially  prohibited  from  administrating  their 
property  or  the  exercise  of  their  rights  (Arts.  489,  512).  As  to 
those  who  are  not  declared  such  by  a  Court,  see  Arts.  503-504  of 
the  same  code.  The  minor  emancipated  also  cannot  sell  nor  alienate 
his  immovables  without  conforming  to  the  prescribed  forms  for 
minors'  not  emancipated  (Art.  484).  As  regards  specially  the 
spendthrifts,  according  to  the  French  Civil  Code,  they  may  be 
prohibited  from  alienating  their  property  without  the  assistance  of 
a  council  named  by  the  Court  (Arts.  513,  515).  According  to 
.Roman  law,  "  prodigo  interdicitur  bonorum  suorum  administrate,'' 
and  thus  "  solent  prretores  vel  presides,  si  talem  hominem 
invenerint,  qui  neque  tempus  neque  finem  expensarum  haber,  sed 
bona  sua  dilacerando  et  dissipan.lo  profudit,  curatorem  ei  dare 
exemplo  furiosi"  (Lex  1  pr.,  Dig.  27,  10;  compare  also  Lex 
16,  §§  1-3). 

91.  "  Pu  pill  us    sine    tutoris    auctoritate    non    obligatur   nee   in  Disabilities 
emendo,  nisi  locupk  tior   factus  est "   (Lex   5,  §   1,    Dig.  26,   8).  of  infants. 
Without  the  authority  of  their   guardians,  those   who  have  not 
attained  the  age  of  puberty  cannot  buy,  because  "  in  his  causis  ex 
quibus  mutua3  obligationes  nascuntur,  in  emptionibus,venditionibus, 
locationibus,  etc.    Si  tutoris  auctoritas  non  interveniat,  ipsi  quidem 
qui    cum    his    coutrahuut   obligantur,    at    invicem    pupilli    non 
obligantur"  (pr.  Inst.  1,  24).     Compare  also  §§  9,  10,  lust.  10,  19. 

As  regards  the  insane  and  imbecile,  see  the  preceding  uote.  See 
also  the  same  note  as  regards  minors  according  to  the  French  Code. 
However,  the  emancipated  minor  may  do  all  the  acts  which  are  not 
purely  administrative  (Art.  481).  "  As  legards  obligations  which 


302 


The  Ottoman  Land  Code. 


Powers  of 
guardians, 
&C. 


Disability 
of  guar- 
dian or 
trustee. 


he  may  have  contracted  by  purchases  or  otherwise,  they  may  be 
diminished  if  excessive  "  (Art.  484). 

92.  But  independently  of  the  purchase  of  lands,  the  guardians 
may  also  lend  the  money  of  the  minors  at  an  exceptional  interest,  15 
per  cent,  per  annum.    (See  the  Imperial  Firman  on  the  uniform  rate 
of  interest  and  the  modified  law,  Le'g.  Ott.  Vol.  I.,  Nos.  12,  13, 
pages  46  and  48,  Art.  1.)     According  to  Roman  law,  the  guardian 
or  trustee  must  deposit  the  money  of  the  minor  for  the  purchase  of  im- 
movables :  "  Si  pecunia  sit,  quse  deponi  possit,  curare,  ut  deponatur 
ad  praidiorum  comparationem. "  (Lex  3,  §  2,  Dig.  26,  7).    "  Ita  autem 
deposition!  pecuniarum  locus  est,  si  ea  summa  corradi,  id  est  colligi 
possit,  ut  comparari  ager  possit"  (Lex  5  pr.,  eod.),  and  only, -if  this 
become  impracticable,  he  must  lend  it  at  interest  (Lex  24,  Cod.  5, 37  ; 
Lex  7,  §  3 ;  Lex  8 ;  Lex  13,  §  1 ;  Lex  58,  §§  1,  3,  Dig.  26,  7  ;  Lex  3, 
Cod.  5,  56).  Comp.,  however,  Novelle  72,  cap.  4  (d),  but  "si  post  de- 
positionem  pecunige  comparare  prtedia  tutores  neglexerunt,  incipient 
in  usuras  conveniri  "  (Lex  7,  §  3,  7, 10  ;  Lex  58,  §§  3,  Dig.  26,  7). 

In  case  the  guardian  or  the  trustee  has  bought  in  his  name 
land  with  the  money  of  the  minor,  this  minor  has  an  action  to 
recover  the  land,  "si  tutor  vel  curator  pecunia  ejus,  cujus 
negotia  administrat,  prgedia  in  nomen  suum  emerit,  utilis  actio  ei, 
cujus  pecunia  fuit,  datur  ad  rem  vindicandam  "  (Lex  2,  Dig.  26,  9). 
According  to  the  French  Civil  Code,  "  The  family  council  will 
fix  positively  the  amount  at  which  will  commence  for  the  guardian 
the  obligation  to  employ  the  excess  of  the  revenue  over  and  above 
the  annual  expenditure  of  the  minor:  this  employment  must  be 
made  within  the  delay  of  six  months,  after  which  the  guardian  will 
be  debtor  for  the  interest  in  case  of  non-employment  "  (Art.  455  ; 
see  also  Art.  456). 

93.  According  to  Roman  law,  "  the  guardian  may  not  buy  the 
things  of  his  ward,  which  is  applicable  also  to  other  similar  persons  ; 
that  is,  to  trustees,  attorneys,  and  other  agents  of  the  affairs  of 
others"  (Lex.  34,  §  7,  Dig.  18,  1)  ;  and<this  because  in  general  "  it 
is  not  allowed  that  he  who   administers  a  thing  should  buy  it, 
neither  himself  nor  by  an  intermediary,  under  pain  of  losing  the 
thing  purchased  and  paying  four  times  the  value  of  it  (Lex  4(>, 
Dig.  18,  1),  of  which  see  the  entire  text  in  the  note  of  Art.  88. 
And  particularly  the  guardian  may  not  buy,  (a)  nor  by  the  medium 
of  another  person  (Lex  5,  §  3,  eod.);  (6)  nor  by  the  medium  ul  a 


Notes.  303 

11  who  is  umler  him  (§  fi,  eod.)  ;  ('•)  nor  through  his  wife  (Lex  5,  Trustee 

. --r,  with  the  authorisation  <>f  his  joint  guardian  f.innot  buy 
;//./-  and  pal;un  (I.  Hid   1, 'l  %.  W,  «),  «r  ^  ™ 

in  c:w  of  :i  Mile  by  auction  (Lex  1',  g  1,4;  Lex.  5,  Cod.  4,  S-.imlford). 

it  that  only  if  the  sale  takes  place  according  to  law  (see  the 
According  to  French  law,  "the  guardian  can 
neither  buy  the  lauds  of  the  minor  nor  farm  them,  unless  the  family 
council  lias  authorised  the  second  guardian  to  let  them  to  him" 
(Art.  450  of  the  Civil  Code).  But  the  g-'ardian  n«t  only  may  not 
buy  the  lands  of  the  minor,  but  also  may  not  sell  them  without 
be.ng  authorised,  either  by  the  family  counciFSccording  to  French 
law,  or  by  the  judicial  authority  according  to  Roman  law,  as  is  seen 
in  the  following  note. 

94.  A.  Roman  law.  Any  alienation  of  the  lands  of  a  minor  by  No  sale  of 
his  guardian  or  trustee  cannot  be  valid  without  the  permission  of  }an(*  °f 
the  judicial  authority,  granted  onlyiii  case  of  necessity,  (a)  In  the  Wjtjj0ut 
origin  judicial  permission  was  necessary  only  for  the  alienation  of  leave  of 
the  preedia  rustica  or  suburbana  :  "  imperatoris  Seven  oratione  Court, 
prohibiti  sunt  tutores  et  curatores  pradia  rustica  vel  suburbana 
distrahere  "  (Lex  1,  Dig.  27,  9) ;  but  this  authorisation  was  to  be 
granted  only  for  the  payment  of  a  debt  of  the  minor,  who  "  ex  rebus 
ceteris  non  possit  exsolvi"  (Lex  2,  eod.).  However,  the  prohi- 
bition has  been  extended  (b)  by  the  law  of  real  rights,  "  si  jus 
eptyvTevTiKbv  vel  enftciTevTiKov  habeat  pupillus  videamus  an  distrahi 
hoc  a  tutoribus  possit :  et  magis  est  non  posse,  quarnvis  jus  praedit 
potius  sit  "  (Lex  3,  §  4,  eod.) ;  compare  also  the  Laws  3,  §  6,  and 
4,  §  5  eod.  And  at  the  last  (c)  by  the  Imperial  legislation  on  all 
kinds  of  property.  The  permission  then  of  the  judicial  authority, 
even  according  to  the  Imperial  legislation,  can  be  granted  under 
pain  of  invalidity  only  in  a  case  of  necessity  (necessitas),  but  not 
for  a  case  of  utility  (compare  the  Laws  22  and  25,  Cod.  5,  37),  and 
after  a  careful  examination  of  the  case,  "causa  cognita  prseses 
provinciae  debet  id  permittee"  (Lex  11,  Dig.  27,  9;  compare  also 
the  Laws  5,  §§  9-11,  eod.  6  and  12,  Cod.  5,  71).  This  examination 
of  the  reasons  is  also  necessary  in  the  case  of  alienation  of  the 
property  of  the  furiosi  or  of  the  prodigi  with  respect  to  whom  the 
same  principles  are  in  force :  "  Prases  provinciaj  idem  servari 
oportet,  et  si  furiosi  vel  prodigi  vel  cujuscumque  alterius  prasdia 
curatores  velint  distrahere"  (Lex  11,  Dig.  27,  9).  The  judicial 


304  The  Ottoman  Land  Code. 

authorisation  is  indispensable  only  exceptionally  in  the  case  of  the 
fulfilment  of  an  obligation  transmitted  by  inheritance  to  the  minor 
(Lex  5,  §§  6,  7,  Dig.  27,  9),  but  all  alienation,  even  that  done  con- 
formably to  the  laws,  can  be  questioned  by  the  minor  on  the  ground 
of  damage  by  means  of  the  restitution  in  integrum  during  fuur 
following  years  after  his  coming  of  age ;  disposition,  however 
contrary  to  Article  52  of  the  Code  in  question,  which  confirms  the 
imi  m  peach  ability  of  the  sale  (compare  Lex  2,  3,  5  ;  Cod.  2,  25 ; 
Lex  11,  Cod.  5/71  ;  Lex  4,  5,  Cod.  2,  27  ;  Lex  29  pr. ;  Lex  47  pr., 
Diir.  4,  4 ;  and  for  prescription  quadriennium,  Lex  7,  Cod.  2,  53). 

B.  French  law.  The  guardian,  even  the  father  or  the  mother, 
cannot  alienate  or  hypothecate  the  immovable  property  without 
beinii  authorised  to  do  it  by  a  family  council.  This  authorisation 
must  not  be  granted  but  for  a  case  of  necessity,  or  for  evideut 
advantage.  In  the  first  case,  the  family  council  will  grant  its 
authorisation  only  after  it  has  been  proved,  by  a  summary  account 
presented  by  the  guardian,  that  the  last  movable  effects  and  the 
income  of  the  minor  are  insufficient. 

The  family  council  will  point  out  in  all  cases  the  immovables 
that  must  in  preference  be  sold,  and  all  the  conditions  which  it 
may  consider  useful  (Art.  457  of  the  Civil  Code).  But  "the 
deliberations  of  the  family  council  relative  to  this  object  will  be  put 
into  execution  only  after  the  guardian  has  asked  for  and  obtained 
the  approval  of  it  by  the  tribunal  of  first  instance"  (Art.  458). 
With  regard  to  the  procedure  to  be  followed  for  the  approval  of  the 
deliberation,  compare  Arts.  882-889  of  the  Civil  Procedure;  and 
with  regard  to  the  public  sale  by  auction  of  the  immovables, 
compare  Art.  459  of  the  Civil  Code.  The  alienation  of  the  immov- 
ables of  interdicts  and  of  emancipated  minors  is  governed  by 
the  same  conditions.  The  emancipated  minor  "  could  not  alienate 
his  immovables  without  observing  the  forms  prescribed  for  the 
minor  not  emancipated  "  (Art.  484  of  the  Civil  Code).  The  inter- 
dict is  assimilated  to  the  minor  as  regards  his  person  and  his 
landed  property ;  the  laws  of  the  guardianship  of  minors  are  to  be 
applicable  to  the  guardianship  of  interdicts  (Art.  509  of  the  same 
Code).  "  The  same  authorisation  of  the  family  council  will  be 
necessary  to  bring  about  a  division  "  (Art.  465).  As  t6  the  pro- 
cedure to  be  followed,  compare  Art.  460  of  the  same  Code,  and 
note  42 ;  see  also  the  following  note. 


Notes.  305 


'.).").   A.  Chifiliks  of   minors.     As    regards    the  general  manage-  Man;, 
nient  and  the  letting  or   the  sale  by   public  auction  of  Chiftliks  ment>  Ie 
belonging  to  minors — that  is,  property  consisting  of  buildings,  cattle,  &°*'0f  e 
beasts  of  burden,  vines  and  other  property,  and  domains  to  which  infants' 
they  belong— see  Chap.  III.,  Arts.  31-33,  of  the  Tapu  Law.  property. 

B.  Landed  property  of  minors  domiciled  in  Crete.     As  regards 
exceptionally  the  superintendence  by  the  respective  Demoyerontes 
of  the  management  of  the  property  of  the  Christians  or  Mussulmans 
of  the  island  of  Crete  \vho  are  under  guardians  or  trustees,  see  the 
judicial  regulations  of  the  vilayet  of  Crete,  Arts.  70,  71,  classed  in 
the  third  section  of  public  law. 

C.  Legislation  relative  to  minors  in  general,  Arts.  18,  20,  50-53, 
61,  63,  65,  76;  and  Arts.  31-33  of  the  said  Law.     The  chapter 
about,  sales  being  finished,  it  must  be  observed  (1)  that,  as  regards 
the  sale  of  land  granted  to  colonists,  it  is  necessary  to  compare 
Art.  8  of  the  special  law  ad  hoc  (L6g.  Ott.  Vol.  L,  No.  6,  page  17) ; 
(2)  as  regards  the  alienation  of  vakf  lands  held  by  ijareteiu,  to 
Law  No.  19,  Arts.  4,  15,  17,  18,  20-22,  and  26-29. 

96.  The  provisions  of  Chapters  III.  and  IV.  relative  to  the  beredi-  Devolution 
tary  transmission,  and  to  the  vacancy  or  escheat  of  Mirie  lands,  have  b>" innent- 
been  essentially  modified  by  the  law  "  relative  to  the  extension  of 

the  right  of  inheritance  to  landed  property  called  Mirie  and 
Mevkufe,  dated  the  17th  Muharem,  1284  (21st  May,  Ib67),  of 
which  the  entire  text  will  be,  found  at  page  158,  and  the  provisions 
relative  to  the  right  of  inheritance  in  the  note  100.  As  regards  the 
application  of  the  present  code  relative  to  Christian  estates,  compare 
the  Vezirial  order  "  on  the  Inventory  of  Christian  Estates  "  (Leg. 
Ott.  Vol.  L,  No.  11,  page  43). 

97.  Literally,  under  his  care,  given  to  him  on  certain  conditions.  Death  of 
The   term    indicates    rather    the    enjoyment    usufructuary   than  owner- 
patrimonial,  that  which  constitutes  mulk,  freehold  (Belin). 

98.  As  regards  estates  bestowed  on  posterity,  compare  with  the  Descent  t«. 
Koman  law   La  Novelle  118,  Chap.  L,  and  with  the  French  law  child- 
Arts.  731  and  745  of  the  Civil  Code ;  and  as  regards  the  estates  of 
adopting  fathers,  Art.  350. 

99.  According  to  Roman   law,    "  antiqui   libero  ventri  ita  pro-  Child  en 

spexerunt  ut  in  temptis  nascendi  omnia  ei  jura  inte^ra  reservarent"  vent™  *« 

mere. 

A. 


306 


The  Ottoman  Land  Code. 


(Lex  3  pr.,  Dig.  5,  4).  As  for  "  cura  bonorum  ventris  nomine," 
compare  Lex  1,  §  4,  Dig.  50,  4;  Lex  1,  §§  2,  42,  7;  Lex  8, 
Dig.  27,  10;  Lex  1,  §§  17-26;  Lex  5,  Dig.  37,  9;  in  the  same 
manner  for  the  trustee  to  the  unborn,  compare  Art.  393  of  the 

French  Civil  Code. 


Descent  100.  In  consequence  of  the  law  on  the  extension  of  the  right  of 

upon  inheritance  mentioned  in  note  96,  the  order  of  succession  to  lands 

Mirie  and  Mevkufe  established  by  the  Law  has  been  modified  in 
t'aihn-e  of     the  following  manner: — 

chiHren  "Art.  1.  The  provisions  of  the  Land  Law  are  maintained  which 

a?Mdgr      "  establish  the  right  of  succession  in  favour  of  the  children  of  both 
sexes,  in  equal  portions,  to  lands  Mirie  and  Mevkufe. 

."  On  failure  of  children  of  the  one  or  the  other  sex  the  succession 
to  these  lands  will  fall  to  the  heirs  of  the  subsequent  degrees,  in 
equal  shares  and  without  any  obligation  in  return,  namely — 

"  2nd  Degree.     To  the  grandchildren ;  that  is,  to  the  sons  and 
daughters  of  the  children  of  the  first  degree  of  both  sexes. 
"  3rd  Degree.     To  the  father  and  the  mother. 

To  the  brothers  german,  and  to   the  brothers 


"4th  Degree, 
consanguineous. 

"  5th  Degree, 
sanguineous. 

"  6th  Degree. 

"  7th  Degree. 


To  the  sisters  german,  and  to  the  sisters  con- 


To  the  brothers  uterine. 
To  the  sisters  uterine. 

"  On  failure  of  heirs,  to  the  undermentioned  degrees : — 

"  8th  Degree.     To  the  surviving  husband  or  the  surviving  wife. 

"  Art.  2.  The  heir  within  one  of  the  degrees  established  above 
excludes  all  the  heirs  belonging  to  the  subsequent  degrees.  For 
example,  the  grandchildren  cannot  inherit  the  lands  if  there  be 
children,  and  the  father  and  the  mother  will  be  equally  excluded  from 
the  inheritance  by  the  grandchildren  existing,  and  thus  for  the  others. 

"  But  the  children  of  the  sons  and  daughters  pre-deceased  being  in 
the  place  of  the  said  sons  and  daughters,  will  inherit  by  right  of 
representation  the  portion  falling  to  their  father  and  mother  pre- 
deceased from  the  estate  of  their  grandfather  and  their  grandmother. 
But  the  surviving  husband  or  wife  will  have  a  right  to  part  of  the 
inheritance  of  the  lands  transmitted  by  succession  to  the  heirs  of  all 
the  degrees  from  the  3rd  degree  (succession  from  the  father  and 


Notes.  307 


•T)  inclusive  to  the    7th  degree  (succession   of  the   uterine 

>')  inclusively.'1 

With  respect  to  Ilomanlaw,  compare  (d)  relative  t<>  the  successions  Rules  of 
falling— 1st,  to  the  ascei.dants  of  the  deceased,  to  the  brothers  iaheri' 
and  sisters  consanguineous,  and  to  the  children  of  the  brothers 
and  sisters  pre-deccased  (Xovelle,  118,  Chaps.  II.,  III.  pr.,  and 
.  .iap.  I.);  2nd,  to  the  uterine  brothers  and  sisters, 
and  to  the  children  of  the  brothers  and  sisters  pre-deceased 
hap.  III.);  3rd,  to  the  other  relations,  preferring  the 
nearest  (Xovelle,  118,  Chap.  III.,  §  1).  (&)  As  regards  unusual 
estates— (1)  of  the  poor  widow  (Xovelle,  53,  Chap.  VI. ,  Xovelle  117, 
Chap.  V.) ;  (2)  of  the  young  person  of  full  age  emancipated  by  the 
adopting  father  without  any  reason — that  is,  "la  quarta  Divi  Pii ?' 
(§  3,  Inst.  1, 11 ;  Lex  22  pr.,  Dig.  1,  7  ;  Lex  2,  Cod.  8,  48  ;  Lex  13  pr., 
Dig.  38,  5).  As  regards  French  law,  compare  (a)  as  regards  estates 
falling  to  the  ascendants,  Civil  Code,  Arts.  746-749;  and  to 
collateral  estates  (Arts.  750-755).  (6)  Relative  to  irregular 
successions— (1)  of  natural  children  (Arts.  756-766);  (2)  of  the 
surviving  husband  or  wife  and  the  State  (Arts.  767-773).  (c)  As 
regards  the  right  of  [representation,  jus  representatiouis  (Arts.  739- 
744). 

101.  According  to  the  common  civil  law,  or  Mussulman  religious  Right  of 
law,  when  on  the  opening  of  a  succession  one  of  the  heirs  is  absent,  absent 
and  that  from  his  disappearance  there  has  elapsed,  without  having 

had  any  news  of  him,  a  space  of  time  equal  to  the  probable  limits 
of  human  life,  this  heir  is  considered  as  uncertain,  and  consequently 
excluded  from  the  estate.  But  in  case  the  amount  of  time  elapsed 
leaves  some  doubt  on  the  existence  of  the  absent,  his  part  of  the 
inheritance  is  reserved — calcufated  according  to  certain  rules — and 
the  definitive  division  is  suspended  until  there  is  reason  to  pronounce 
that  he  is  either  dead  or  alive  (Sol vet, '  Mussulman  Estates,'  page  7). 
According  to  French  Civil  Law,  if  a  succession  is  opened  to  which 
an  individual,  whose  existence  is  not  recognised,  is  called,  it  will 
fall  exclusively  to  those  with  whom  he  would  have  had  the  right 
to  compete,  or  to  those  who  would  have  received  it  in  his  absence 
(Art.  136  of  the  Civil  Code>  -Bee  the  following  note. 

102.  According  to  the  French  Civil  Code,  the  provisions  of  the 
Art.  136  (mentioned  in  the  preceding  note  in  fine)  will  have  force 

x  2 


;o8 


The  Ottoman  Land  Code. 


Right  of 

absent 

child. 


without  prejudice  to  actions  by  petition  of  hereditary  right  and 
other  rights  which  belong  to  the  absent,  or  his  representatives,  or 
attorneys,  and  which  will  not  be  extinguished  by  the  lapse  of 
time  established  for  prescription  (Art.  137). 


Right  of  103.  The  order  of  succeeding  to  this  absent  possessor,  who  is 
Iren  of  presume(i  to  be  dead,  has  also  been  modified  by  the  law  cited  in 

owner.  note  100.  As  to  the  meaning  of  absentee  whose  existence  or 
decease  is  unknown,  according  to  Mussulman  law  in  general,  compare 
note  101  relative  to  the  absent  heir.  As  regards  French  law, 
compare  Arts.  112-143  of  the  Civil  Code,  and  specially  Arts.  115, 
120. 


Privilege 
of  soldier. 


104.  According  to  the  Law  3,  Cod.  2,  50,  "quod  tempore  militias 
^e  bonis  alicujus  possessum  ab  aliquo  est  posteaquam  is  reipublicas 
causa    abesse  desiit,   intra    annum    utilem,   amota    prescriptione 
temporis  medii  possessionem  vindicare  permissum  est  ;  ultra  autem 
jus  possessoris  lanlere  contra  eum  institutum  non  oportet  ;  "   and 
according  to  the  Law,  4  Cod.,  "  venditionem  autem  in  id  tempus 
differri,  quo  reipublicee  causa  abesse  desierint."     (Legislation  lie- 
lative  to  Soldiers,  Arts.  59,  §  9,  67  and  73.) 

105.  See  notes  96  and  100,  and  the  note  following  106. 


Right  of  106.  The  right  of  preference  to  Tapu  of  collateral  relations,  and 
owner  of  of  the  wife  of  the  deceased,  which,  as  we  have  already  observed, 
has  a  certain  affinity  to  the  Erblosung  of  the  German  law  (see 
note  83),  has  been  abolished  by  the  law  cited  in  note  100.  in 
virtue  of  which  a  right  of  inheriting  the  lands  Mine"  and  Mevkufe 
of  the  deceased,  following  the  order  "-established  by  the  said  law, 
has  been  granted  in  their  favour. 


Mulk  trees 
or  build 
ings. 


Preferen- 
tial right 
of  joint 
tenant. 


107.  As  regards  the  rijiht  of  preference  of  the  joint  holder  in  the 
case  of  the  sale  of  the  common  land  by  the  joint  hoMer,  see  above, 
Arts.  41,  42,  and  notes  78,  83,  and  112  ;  legislation  relative  to 
communio  possessionis,  Arts.  15-19,  35,  41-43,  and  the  Art.  in 
question,  59,  §  8. 


108.  In  regard  to  the  righ't  of  preference  of  the  inhabitants  of 


Notes.  309 

the  same  district   (commune)    in  the  case  of  the  sale  of  the  land  Finality  of 
situati-il  in  the  cc.nnnnne,  see  Art.  -lf>,  and  notes  78,  83,  and  112.     award. 

109.  On  account  of  the  extension  of  the  right  of  inheritance  we  Failure  of 
may  complete   the  expression  of  the  text  as  follows:  ''nor  otln-r 
ptrsons  called  to  inherit  according  to  the  order  established  by  the 

law  ad  hoc  "  (see  note  100).  Tapu. 

110.  As  regards  the  right  of  the  State  to  unclaimed  estates,  or  Extent, 
rather   the  return  to  the  Sate  of  the  right  of  possession  as  owner, 
compare  note  10  ai.d  Art.  2,  page  2.  • 

111.  Consequently  they  can  demand  restitution  in  integrum  of  Preserva- 
this  loss  of  their  right,  and  thus  exercise  their  rights  of  preference  t|on  °f 
against  the  purchaser  of  the  land,  but,  however,  within  the  time  "^j,0 
fixed  for  the  bringing  forward  the  claim,  as  is  seen  in  the  article  under  dis- 
and  the  following:    Legislation  relative  to  Minors,  Arts.  18,  20,  ability. 
50-53,  60, 61,  63,  65,  76  ;  and  Tapu  Law,  Arts.  31-33. 

112.  The  provisions  of  the  Art.  61  in  fine,  in  virtue  of  which  the  Period  for 
prescription  of  the  action  for  restitution  is  not  suspended  during  asserting 


the  state  of  minority,  madness,  imbecility,  and  absence,  exceptional  ™B 
provisions,  and  contrary,  besides,  to  the  principle  established  by 
the  same  code  in  favour  of  minors  and  others  prohibited  (Arts.  20, 
52,  76),  is,  however,  in  accordance  with  German  law,  according  to 
which  the  minor  cannot  demand  restitution  on  account  of  neglecting 
to  exercise  the  right  of  preference  in  the  sale  (Retractsrechts) 
within  the  time  fixed  by  the  law.  "  The  principles  which  are  in 
force  about  the  prescription  of  suits  (says  a  decree  of  the  Supreme 
Court  of  Appeal  of  Celle  of  the,  year  1852)  finds  no  application  of  the 
delay  of  a  ytar  and  a  day  fixed  for  announcing  the  right  of  claiming 
restitution,  which  is  foreign  to  Eoman  law.  Consequently  he  who 
has  the  right  of  preference  cannot  make  use  of  the  privileges  granted 
to  the  minor  relative  to  prescription,  because  the  delay  fixed  for 
bringing  the  action  for  restitution  (Retractsklage)  is  in  force  also 
against  the  minor  without  his  being  able  to  obtain  a  restitution 
from  neglecting  this  delay  (see  Seuffert,  '  Archiv  fur  Kntscheidungen 
der  obersten  Gerichte  in  den  deutschen  Staaten,'  Band  7,  Xo.  82). 
It  must  also  be  observed  that  the  Retractsklage,  the  action  to 
claim  restitution  of  the  German  law,  that  is,  the  one  within  whose 


310 


The  Ottoman  Land  Code. 


Forfeiture 
TaVu   1  10 

Sale  sub- 

'  *° 
infants  &c 


denomination  are  included  all  the  special  actions  by  which  one 
may  avail  of  the  different  kinds  of  right  of  preference  to  a  sale 
(note  83),  "is  a  real  action  (dingliche  Klage),  according  to  the 
opinion  of  the  plurality  of  authors,  whilst  others  consider  it  as  an 
actio  in  rem  scripta."  (See  Lewis  on  the  word  "Naherrecht"  in 
the  '  Encyclopedic  der  Rechtswissenschaft  '  of  Dr.  von  Holtzendorff.) 
The  Ottoman  law  adopts  .the  opinion  prevalent  in  Germany,  in 
admitting  the  action  for  restitution  against  ihe  holder  of  all  land 
sold.  (See  the  Art.  mentioned  in  the  note  78,  1-3,  and  the  Art.  in 
question,  61.)  As  fregards  the  collision  of  the  rights  of  preference 
put  forward  by  different  persons  to  the  same  property,  according  to 
German  law,  "when  several  having  a  right  of  ]  -reference  bring 
forward  at  the  same  time  their  claim,  if  their  actions  are  based  on 
the  same  kind  of  rii:ht  of  preference,  in  the  case  of  Erblosung  (that 
is,  the  right  of  relations),  the  nearest  relation  is  preferred  to  the  most 
distant,  and  in  the  other  kinds  prejudice,  and  finally  lottery,  decides 
(Lewis,  end.).  The  Ottoman  law  established  also  the  right  of  pre- 
ference of  the  nearest  relations,  according  to  the  order  laid  down  in 
Art.  59,  §§  1-7,  but,  as  has  been  said  above  (note  100),  their  rights 
have  been  replaced  by  the  succession  law.  As  for  by  lot,  it  is 
established  as  regards  the  inhabitants  of  the  same  commune  .(see 
Art.  69,  §  9).  Thus  the  collision  of  rights  can  take  place  in  other 
cases,  regarding  which  the  law  has  established  no  order  among  the 
different  kinds  of  right  of  preference. 

113.  The  provisions  of  Art.  62  are  not  applicable  to  collaterals 
*n  conseclueDCe  °f  the  law  of  succession  (note  100),  but  only  to  the 
others  having  a  right. 

114.  Because  their  guardians  and  trustees  by  Art.  65  may  purchase 
land  by  the  tax  of  Tapu,  if  it  be  advantageous.      See   also   the 
Precec^nS  note-     (Legislation  relative  to  Minors;  compare  note  111 
in  fine.) 

115.  As    regards  the  degrees   1-7  of    the   Art.,  modified   59, 
compare  the  note. 

116.  In  conformity  with  the  German  law,  according  to  which 
"the  right  of  preference  cannot  be   availed  of  but  by  him  who 
alone  has  the  right  in  favour  of  himself.     It  is,  therefore,  neither 
alienable  by  cession,  nor  transmissible  by  inheritance  to  his  heirs." 


Notes.  3  1 1 


Lewis  in  the  '  Kneyclopiidie '  mentioned  above,  in  the  note  Degrees  of , 

112,  . 

entitled. 

117.  Compare  also  Art.  51   and  note  111.  as  regards  the  A 

-  minors. 

.:pare  also  Art.  44  as  regards  the  right  of  preference. 

Nation  rel.-r  _'.s  become  Mi.l/. . 

•<>).  . 

11!'.  Pr.  '  :i ve  to  soldiers  (Arts.  58,  59.  §§  9,  67  and  7-'i). 

Compare,  however,  note  104. 

Sre  Art.  11  arid  note  30. 

121.  See  Art.  69  and  note. 

122.  According  to  Roman  law,  tho  emphyteuta  may  be  deprived  Di?v 

of  the  right  of  having  a  long  lease  ---(I)  in  the  case  of  deterioration  unnlie.l 
of  the  land  (Nov.  120,  chmp.vuL,  I  >,  which  is  applied  also  to  land' 

the  letting  of  the  laud  (Lex  3,  Cod.  4,  65)  ;  and  (2)  in  the  ca- 
non-payment of  the  rent  to  the  owner,  or  of  the  taxes  during  three 
years,  "bin  per  totum  tricnnium   neque   pecunias  solvent  neque 
apochas  domino  tributorum  reddiderit  "  (Lex  2,  Cod.  4,  66).     < 
pare,    however,    the   chapter  58  of  Book  xi.,  Cod.  de  omni  agro 
deserto,  and  the  following  note.    As  regards  the  cessa'ion  of  the  right 
of  usufructus  with  respect  to  the  usufructuary,  according  to  the 
Roman  law  and  the  French  law,  in  the  case  of  deterioration,  compare 
note  7.     As  regards  the  legislation  relative  to  the  loss  of  the  right 
of  possession  on  account  of  no  revenue,  see  Arts.  69- 

123.  "  Si  vacanti  ac  destitute  solo  novus  cultor   insederit  ac  Recov 
vetus  dominus  intra  biennium  eadem  ad  suum  jus  voluerit  revocare,  ot*  ^ost 
restitutis  premitus,  qiu-e  expensa  constiterit,  facultatem.  loci  proprii  a 
consequatur.     Xam  si  bieifnii  fuerit  tempus  emensum,  onine  ]»os- 

uis  et  domiuii  carebit  jure,  qui  siluit "  (Lex  8,  Cod.  11,  58). 

124.  In  conformity  to  the    Roman    laws,  according   to   which  Right  of 
"  inundation  does  not  change  the  nature  of  the  land,  and  therefore,  own- 
when  the  waters  have  retired,  it  is  indubitable  that  the  land  belongs 

to  him  to  whom  it  belonged "  (Lex  6,  Dig.  41,  1).  In  the  same 
way,  u  Alluvio  agrum  restituit  eum,  quern  impetus  fluminis  totum 
abstulit,  itaque  si  ager,  qui  inter  viam  publicam  et  flumen  fuit, 
inundatione  flummis  occupatus  esset,  sive  paulatirn  occupatus  est 
sive  non  paulatim,  sed  eodeui  impetu  recessu  fiuminis  restitutus  ad 


312  The  Ottoman  Land  Code. 

pristinum  dominium  pertinet ;  flumina  enim  censitorum  vice 
limguntur,  ut  ex  private,  in  publicum  addicant,  et  ex  publico  in 
privatum:  itaque  sicuti  hie  fundus  cum  alveus  flurninis  factus 
esset,  fuisset  ptiblicus,  ita  mmc  privatus  ejus  esse  debet,  cujus  antea 
fuit "  (Lex  3,  Dig.  eod).  As  regards  French  law  with  respect  to 
the  right  of  alluvion,  compare  Arts.  556-563 ;  and  especially  for  the 
case  in  question,  Arts.  557,  558,  and  563. 

125.  As  regards  collaterals  who  are  already  heirs,  see  the  notes 
100  and  106.       ' 

126.  As  regards  collaterals,  see  the  preceding  note. 

Privilege  127.  In  the  note  104  the  Law  3,  Code  2,  50,  has  been  mentioned, 
>f  soldier,  according  to  which,  "  it  is  allowable  during  one  year  to  a  soldier 
after  his  return  to  claim  those  lands  which  another  has  in  his 
power,  and  his  claim  cannot  be  opposed  by  the  possession  of  them 
during  that  time."  To  complete  what  has  already  been  said  about 
soldiers  according  to  Roman  law,  it  must  be  added — (1)  that  by  the 
Law  17,  Dig.  4,  6,  "  One  must  assist  a  soldier,  not  only  against  the 
possessor  of  an  inheritance  which  belongs  to  him,  but  also  against 
those  who  have  bought  something  of  it,  so  that  by  appearing  as 
heir  he  can  claim  the  hereditary  effects  even  sold."  (2)  That 
the  term  of  this  restitution  in  totality  (restitutio  in  integrum), 
which,  according  to  the  law  of  the  Pandects  agreed  with  the  year 
which  has  been  modified  by  the  Emperor  Constantine,  and  finally 
by  Justinian,  who  fixed  as  such  four  consecutive  years  without 
distinction  of  place  or  person  (Lex  7,  Cod.  2,  52  or  53),  "quad- 
riennium  continuum.'*  See  also,  as  regards  minors,  note  94  (A), 
page  98.  (3)  That  the  pratorian  edict,  in  virtue  of  which  the 
restitution  could  be  demanded,  being  drawn  up  in  these  terms, 
*'  if  anyone  has  sustained  injury  or  damage  to  his  property  whilst 
he  was  absent  in  good  faith  for  the  service  of  the  republic  (reipublicse 
causa  abesset)"  (Lex  1,  §  1,  Dig.  4,6),  all  the  military  who  cannot 
leave  their  flag  without  danger  are  considered  absent  for  the  service 
of  the  republic  (Lex  45,  Dig.  4,  6),  and  for  that  the  military  man 
on  leave  and  at  home  is  not  looked  upon  as  absent  "  for  the  service 
of  the  republic "  (Lex  34,  eod. ;  Lex  1,  Dig.  49,  16).  However, 
"  a  soldier  on  leave  is  considered  abseut  whilst  he  is  going  home 
or  coming  from  it,  but  he  ceases  to  4>e  so  whilst  he  is  at  home  " 
(Lex  35,  §  9,  Dig.  4, 6).  Compare  also  Lex  8,  Cod.  2,  50  or  51). 


Notes.  313 

(4)  Except  the  combatants  abroad  and  in  the  ranks  "  the  Kmpemr  Privilege 
Antonine   had  decided   that  it  v  rue  for  the  guards  of  the  of  military. 

:iis  militibus  (Lex  35,  §  4,  Dig.   4,  «).     (5)     The 

the  army  (militum   medici)   can  also  demand   to  have 
restitution  for  the  sa:  .  because  their  functions  are  public 

and  ought  not  to  injure  them  (Li-x  .'53,  §  2,  eod.).     (6)  Also,  those 

,t  to  load  or  to  brin.::  back  soldiers,  or  to  recruit  (Lex  35, 
eod.);  and,  finally  (7)  The  women  who  accompany  their  husbands, 
abs.-nt  for  the  service  of  the  republic,  like  those  *of  the  military 
(Lex  1,  Cod.  31  or  52).  (8)  As  regards  the  time  dining  which  they 
are  supposed  to  b»  absent  for  the  service  of  theTState  it  is  established 
h,  the  time  occupied  by  the  function  they  exercise,  but  as 
soon  as  the  absence  for  the  service  of  the  State  has  ceased  a  reason- 
able time  is  fixed  for  the  return  (Lex  38,  §  1.  Dig.  4,  6).  It  is  for 
this  reason  that  one  is  absent  through  bad  faith  when  one  does  not 
return  so  soon  as  he  might  have  done,  and  there  is  no  cause  for 
restitution  on  account  of  the  damaire  suffered  by  his  absence  (Lex 
4,  eod.);  but  if  one  falls  ill  in  returning,  so  that  he  cannot  continue 
his  journey,  humanity  requires  that  it  be  taken  into  consideration, 
as  also  to  the  season,  to  the  difficulties  ot  navigation,  and  other 
accidents  which  are  imperative  reasons  for  delay  (Lex  38,  §  1,  in 
fine  eod.).  Compare  also,  as  regards  soldiers,  Arts.  58,  50,  §.9,  and 
67,  and  note  104. 

128.  With  respect  to  absentees  see  Art.  56  and  note  101  ;  as  Absentees, 
regards  absent  owners  who  are  presumed  to  be  dead,  Art.  57. 

129.  (A)  According  to  Roman  law,  if  the  guardian  or  trustee  Default  of 
does  not  manage  the  Kstate,  or  does  so  improperly,  of  the  minor,  guardian 
he  can  be  compelled  by  tl^e  competent  authority,  "strictionikis  01 
reniidiis  adhibitis,"  to  fulfil  his  duty,  and  in  case  of  non-obedience 

he  may  be  replaced  by  another  as  suspected  (Lex  3-5,  Cod.  5, 
43 ;  Lex  3,  §  5,  16-18 ;  Lex  4,  §  4 ;  Lex  7,  §§  1,  3,  Di*.  26-10). 
(B)  Also,  according  to  French  law,  those  whose  management 
show  incapacity  or  infidelity  may  he  dismissed  from  the  guardian- 
ship (Civil  Code,  Art.  444,  §  2  ;  compare  also  Art.  450).  As  regards 
the  letting  Chiftliks  belonging  to  minors  in  general,  compare 
note  95. 

%  • 

130.  (1)  As  regards  specially  the  sale  by  public  auction  of  lands 


314  The  Ottoman  Land  Code. 

k   Disposal  of  escheated  to  the  State  either  from  want  of  right  to  Tapu  or  from 

lands  es-      abandoning   this  right,  sale,   which   must    take   place   before   the 
cheated, tec.    .  ,     .    .  ,      ,.       ,-,          .,         ,       .  , 

Administrative  Council,  and,  with  respect  to  lands  measuring  more 

than  500  hectares,  before  the  Imperial  Treasury  in  the  Ministry  of 
Finance,  compare  Arts.  17,  18  of  the  Tapu  Law  and  the  law  of  the 
Vilayets,  Arts.  34,  48.  (2)  As  regards  the  voluntary  sale  or  aliena- 
tion by  the  holder  of  lands  of  which  the  concession  is  confined  to 
functionaries  ad  hoc  of  the  finance  in  the  departments  and  to  the 
caimacams  (administrative  functionaries  of  every  commune)  compare 
Art.  88,  and  Art.  1  of  the  said  law.  (3)  It  must  be  observed  here, 
what  has  been  omitted  iti  note  108,  that  §  9  of  Art.  59,  relative  to 
the  right  to  Tapu  of  the  inhabitants  of  the  same  commune,  has 
been  modified  by  Art.  18  of  the  same  law  only  as  regards  lands  of 
great  extent  and  the  Chiftliks  whose  separation  and  division  is 
injurious,  and  as  regards  which  the  right  of  preference  on  the 
acquisition  of  land  is  abolished,  limited  in  this  case  only  to  the  8th 
degree,  that  is  in  favour  1st  of  the  owner  of  the  trees  or  buildings, 
when  this  person,  being  perhaps  the  heir  according  to  the  Common 
Civil  Law  (Art.  81)  and  not  according  to  the  exceptional  order 
established  by  the  law  mentioned  in  note  100,  has  however  in- 
herited the  said  trees  or  buildings  (Art.  59,  §  7)  ;  and  2ndly,  in 
favour  of  the  joint  holder  (Art.  59,  §  8),  concerning  whom  see  also 
Art.  11  of  the  Instructions  about  Tapu  Title-deeds  ;  3rdly,  as  regards 
the  right  of  parents,  Art.  59,  §§  1-7,  which  has  been  altered  by  the 
law  of  succession  (see  note  106) ;  4thly,  as  regards  the  annulling  or 
rescission  of  the  definitive  decision  of  the  granting  the  right  of 
possession  (see  note  140);  5thly  as  regards  the  offer  about  the 
purchase  of  land  to  those  who  have  a  right  to  Tapu  before  putting 
it  up  to  auction  (compare  4  and  15  of  the  said  Regulations). 

Prescrip-  131.  (A)  As  regards  the  acquisition  of  the  right  of  possession  of  the 
tive  title,  holder  of  the  land  by  the  right  of  Tapu  against  the  true  claimant 
(and  not  against  the  State,  as  it  is  stated  in  Art.  78),  see,  Art.  20 ; 
compare  also  Art.  8,  of  the  Regulations  about  Tapu  Title-deeds. 
(B)  As  regards  Roman  law,  the  usufruct  may  be  acquired  by  Pre- 
scription of  ten  years  for  persons  present,  and  twenty  years  between 
persons  absent  (see  note  47);  but,  as  regards  the  acquisition  of  jus 
emphyteuticum  in  agro  vectigali,  the  doctrine  of  authors  is  not 
unanimous.  According  to  some,  the  emphyteusis  may  be  acquired 


Notes.  3 1 5 


by  usucnpion  whether  there  be  no  emphyteusis,  so  that  the  owner fPrescrip-( 
himself  is  the  person  who  loses  by  the  tisucapion,  whether  the  tiling  tive  title, 
is  already  subject  to  an  emphyteusis,  so  that  it  is  the  right  of  the 
Kmphyteute  of  that  time  who  is  excluded  by  the  usucapiun  (Wind- 
seheid,    '  Pandektenrecht,1  §  221).     According  to  others  the  usu- 
ca]»ion  is  quite  inapplicable,  or  according  to  others  it  is  admissible, 
the  ordinary  as  well  as  the  extraordinary,  but  only  that  which  is 
translative    and    not    constitutive    of  the   right   of    emphyteusis 
(Puchta,  '  Pandekten,'  §  177)  ;  whilst  according.to  others  only  the 
extraordinary   is  admitted,  that  is,  that  of   forty  years,  which  is 
established  by  law  (14  Cod.  11,  61)  in  these  terms:—  "  Jubemus 
omnes  (jui  in  quactimque  proviucia  fundos  patrimoniales,  vel  temp- 
loriim  et  vel   cujuscumque  juris   per   quadraginta  jugiter  annos 
(possessione  scilicet  non  solum  eomm,  qui  nunc  detiuent  verum 
etiam  eoruni  qui  antea  possederaut,  computanda)  ex  quocumque 
titulo  vel  etiarn  sine  titulo  hactenus  possederunt,  vel  postea  per 
memoratum   quadraginta   annorum    spatium    possederint,   nullam 
penetus  super  dominio  memoratorum  omnium  fundorurn  vel  locorum 
vel  domorum  a  publico   actionem  vel  rnolestiam  aut   quamlibet 
inquietudinem   formidare,"  &c.     As    regards    French    law   see   a 
transitory  law  dated  20  May,  1836,  "on  usurped  domainial  lands." 

132.  See  Art,  21  and  note  48. 

132  bis.  In  consequence  of  the  extension  of  the  right  of  in- 
heritance to  collaterals  (note  100),  it  appears  that  the  provisions  of 
Art.  80  find  no  application. 

133.  Defter  Khane,  general  depot  of  the  ancient  archives  and  Definition 
registers   of    the   Cadastre,  relative    to   the   lands   of    the   State.  °/  Defter 
(Compare  D'Ohsson,  '  Tableaux  de  1'Empire  Ottoman,'   T.    VII.,  Khan*' 
page  193.) 

134.  With  regard  to  this  right  of  property  (Mulk)  of  the  tre'.s  Mulk  of 
or  buildings  on  State  lands,  held  either  by  the  same  owner  of  the  trees,  \-<:., 
trees  or  buildings,  or  by  another  owner,  it  remains  to  observe  that  on  State 
the  provisions  relative  to  them  have  great  affinity  with  the  "jus  a 
super ficiei"  of  the  Eoman  law,  according  to  which  "the  right  of 
superficies  is  based  on  the  idea  that  an  edifice  or  other  establishment 

which  is  placed  on  land  belongs  to  some  one  without  the  soil  or  the 


316  The  Ottoman  Land  Code. 

ground,  "si  solum  sit  alterius,  superficies  alteriua"  (Lex  9,  §  4, 
Dig.  39,  2;  Lex  74,  Dig.  6,  1),  "qui  in  alieno  loco  superficiem 
.  .  .  habet"  (L-x  1,  §  Dig.  43,  18).  Compare  Windscheid, 
*  Pandektenrecht,'  §  223;  but  if  it  be  said  that  besides  tlie  edifices, 
other  erections  may  also  be  the  object  of  the  right  of  superficies, 
there  must  be  included  not  only  structures  that  may  be  built 
(bauliche.  anlagen),  for  example-  a  wall,  an  aqueduct,  but  also  trees 
and  other  plantations  (Wiudscheid,  eod.  §  223  in  fine).  The 
right,  then,  of  the  owner  of  the  ground,  which,  by  the  per- 
mission of  the  competent  authority  which  represents  the  State 
as  proprietor,  has  planted  fruit-bearing  trees  (Art.  25),  or  nc  in- 
bearing  fruit  (Art.  29),  or  has  erected  buildings  (Art.  31),  or  has 
grafted  or  raised  trees  grown  naturally  on  the  land  (Art.  26),  or 
has  already  acquired  property,  in  vines  or  fruit  trees,  planted  by 
him  without  the  permission  of  the  authority  by  prescription  of 
three  years  (Art.  25),  and  which  right  of  the  owner  becomes  thus  a 
right  of  property  in  the  said  buildings  or  plantations,  alienable 
separately  (Art.  48),  and  transmissible  by  inheritance  as  Mulk  to 
his  heirs  according  to  common  law  (Art.  59,  §  7,  and  Art.  81) : 
it  is  nothing  but  a  right  of  superficies  on  the  land  of  another,  that 
is,  another  real  right  on  the  soil  of  the  State,  which  is  the  proprietor 
of  it.  It  is  true  that,  in  Koman  law,  the  establishment  superficial 
is  not  considered  as  the  real  property  of  the  person  having  the  right 
to  the  superficies  (Lex  2,  Dig.  43, 18 ;  Lex  86,  §§  41,  30 ;  Lex  19  pr. ; 
Dig.  39,  2;  Lex  49,  Dig.  50,  16;  Lex  10,  Dig.  10,  2),  on  account 
of  the  impossibility  in  law  of  such  a  legal  connection,  because  that 
which  has  a  lasting  connection  with  the  land  has  no  independent 
existence  of  itself,  but  is  an  essential  part  of  the  land,  and  conse- 
quently it  cannot  be  the  object  of  a  special  right,  but  is  included 
necessarily  in  the  legal  connection  which  exists  with  the  ground;  so 
that  the  superficies  is  a  right  on  the  thing  of  another,  of  which  the 
purport,  however,  is  more  extended  than  that  of  a  simple  jus  in  re 
al'ena  (see  Windscheid,  eod.),  whilst  in  the  Ottoman  law  the  estab- 
lishment on  the  superficies  is  expressly  named  freehold,  "  Mulk,"  full 
property.  But  if  it  be  taken  into  consideration  that  after  the  total 
destruction  of  the  establishments  (plantations  or  buildings)  the  owner 
of  these  can  only  exceptionally  have  a  right  to  the  ground  which  remains 
(Arts.  82,  83,  and  note  136),  from  which  it  follows  that  he  cannot 
rebuild  nor  plant  again  if  he  be  not  in  one  of  the  conditions 


Notes.  3 1 7 

• 

required  b;  --83,  89-90,  we  must  admit  that  even  in  the  Qwnership, 

Ottoman  l;i\v  the  denomination  Mulk   cannot  totally  deprive  this  °f  S68', 
right  i>f  the  character  of  a  jus  in  re  alicna,  nor   quite   break   off  &c 
the  intimate  connection  which  exists  between  the  right  of  property 
of  the  State  to   the  soil,  and   the  right  of  the   proprietor  of  the 
establishment  as  regards  the  same  soil  from  which  that  depends, 
because  that  connection  is  basi-d  on  the  nature  of  the  things.     It 
may  then  be  considered  up  to  a  certain  point  as  an  absolute  right, 
more  extensive  than  a  simple  jus  in  re  alicua,  whilst  the  right  of 
-<ionof  the  land  of  the  State  is  such  from  all  points.     Compare 
also  notes  118  and  136. 

135.  See  the  following  note. 

136.  It  is  already  said  (note  134)  that,  according  to  the  provisions  Sites  of 
relative  to  the  rights  of  the  proprietor  of  plantations  or  buildings,  vineyards, 
the  right  to  these  becomes   full  property  (Mulk):   (1)  When  the 

owner  of  the  soil  had  planted  or  built  them  with  the  authorisation 
of  the  competent  authority  (Arts.  25,  29,  32) :  (2)  When  he  has 
grafted  or  raised  trees  come  up  spontaneously  (Art.  26) ;  (3)  When 
he  has  planted  vines  or  fruit  trees  without  authorisation,  of  which, 
however,  he  has  acquired  the  ownership  by  the  three  y ears' 
prescription  (Art.  25).  But  with  regard  to  buildings  on  the  one 
hand,  and  plantations  of  trees  not  fruit-bearing  to  make  a  wood  on 
the  other  hand,  done  without  authorisation,  the  law  has  made  no 
prescription  hi  favour  of  the  holder.  However,  from  comparing 
Arts.  29  and  31,  32,  with  the  Arts,  in  question  (82,  83),  it  follows 
that  the  right  of  the  State  on  such  construction,  which  he  may 
pull  down  (Art.  31),  or  on  such  a  wood  cannot  be  exercised  before 
the  time  of  an  alienation  1?y  the  owner  to  a  third  party,  or  his 
decease,  after  such  a  transfer,  either  by  inheritance  or  between 
living  persons;  it  does  not  seem  that  the  new  owner  can  be 
dispossessed  as  regards  the  Buildings  or  the  trees.  (See  Arts.  49  #nd 
81,  compared  with  .Arts.  82,  83,  in  tine,  relative  to  the  concession  of 
the  ground  on  which  the  buildings  or  plantations  depend.)  As  to 
those  made  by  the  joint  owner,  or  by  a  third  party,  compare 
Art.  35.  As  regards  the  loss  of  the  right  to  the  ground  which 
remains  after  the  ruin,  on  account  of  the  continual  non-payment  of 
the  ijare-i-maktua  to  the  State,  there  must  be  compared  the 


318 


The  Ottoman  Land  Code. 


Jlestora-  <  Arts.  84  and  85,  and  the  note  138.  As  regards  the  Roman  law 
tion  of  relative  to  the  right  of  rebuilding  the  ruined  edifice:  "when  tho 
mgs'  buililing  on  the  surface  has  perished,  it  must  be  taken  into 
consideration  whether  it  is  not  in  accordance  with  the  sense  of  the 
constitutive  act  that  the  owner  of  the  superficies  might  rebuild  the 
establishments"  (Windscheid,  '  Pandektenrecht,'  §  223;  and 
Waechter,  '  Das  Superficiar  oder  Platzrecht,'  page  116).  To  finish 
the  object  in  question  it  only  remains  to  observe  that  right  granted 
by  the  State  to  «the  owner  of  land  to  plant  trees  for  the  purpose 
of  becoming  their  owner  is  practised  also  in  some  localities  of 
Germany,  where  the  commune  grants  the  right  to  plant  trees  in 
communal  pastures  to  a  private  person,  so  that  the  said  trees 
will  belong  to  him  upon  the  payment  of  a  trifling  solarium  (tax 
on  the  soil);  this  right  of  the  individual  is  neither  considered 
as  a  personal  right — that  is  to  say  a  right  ex  obligatione,  which  he 
cannot  use  against  a  third  buyer  of  the  soil — nor  as  a  simple  right 
of  usufructus  of  the  trees,  which  is  extinguished  by  the  death  of 
him  who  planted  them ;  but,  on  the  contrary,  it  is  considered  as  a 
snperficiary  right,  because  the  intention  of  the  parties  was  only  to 
create  a  true  superficiary  right,  because  the  intention  of  the  parties 
was  nothing  more  than  the  constitution  of  a  true  superficial  right, 
and  it  is  as  such  that  it  has  been  understood  and  recognised  by 
the  commune.  (Waechter,  eod.  page  53,  mentioned  by  WmcUcheid, 
eod.  §  223,  note  20.) 

137.  As  regards  lands  yaylak  or  kishlak,  see  note  52  and  Art.  25 ; 
compare  also  following  Arts,  and  notes. 

Vacant  138.    As    regards    land   remaining    uncultivated   during    three 

meadows,  following  years,  or  exceptionally  four,  if  there  has  been  total  or 
partial  succession  in  the  person  of  the  owner,  that  is,  hereditary 
transfer  or  alienation  inter  vivos  without  legal  grounds,  compare 
68-76.  As  regards  Roman  law,  it  is  already  said  that  the  emphy- 
teute  to  whom  is  assimilated  the  owner <of  State  land  (agri  public!) 
with  the  title  of  perpetual  location,  mav'  be  deprived  of  the  right  of 
Emphyteuse,  excepting  in  the  case  of  deterioration  of"  the  land ; 
also  in  the  case  of  non-payment  of  rent  to  the  proprietor,  or  of 
taxes  during  three  consecutive  years.  (See  the  note  122.) 

139.  Nevertheless,  in   the  case  of  a  damage  by  a  fraudulent 


Notes.  3  1  9 

• 

t  ion,  tlu-  Stati-  may,  during  the  ten  years  after  the  concession,  Right  t 
pruvoke  the  cancelling  of  the  sale,  if  the  buyer  will  not  make  up  Tapu. 
the  price.     ^Si-u  the  following  article  in  line.) 


1  10.  Independently  of  the  reasons  which  may  cause  in  favour  of  \\. 

^:ate  the  cancelling  a  definitive  adjudication  of  a  grant  of  land  highest 
which,  as  is  already  said  (note  130),  must  be  made  either  by  the  JjJjJjJ 
Mejlis  Idare  or  by  the  Imperial  Treasury  in  the  Ministry  of  ianj_ 
Finance,  that  is  (a)  on  account  of  loss  by  the  low  price  (Art.  87 
in  question),  and  (b)  in  the  case  of  a  purchase  by  a  functionary 
\vhoia  the  law  prohibits  from  being  a  purchaser  (Art.  88),  the 
definitive  adjudication  may  also  be  annulled  or  rescinded  :  (1)  By  an 
hereditary  right  brought  forward  by  the  heir  (see  note  100)  claim- 
ing the  inheritance,  but  only  during  three  years  after  the  decease  of 
the  owner  (Art.  56,  compared  with  Arts.  74,  75)  ;  (2)  In  favour  of 
a  minor  or  other  interdict  whose  guardian  or  trustee  has  not  put 
forward  the  right  of  preference  belonging  to  these,  or  he  has 
abandoned  this  right,  but,  however,  within  the  term  fixed  by  law 
for  the  exercise  of  the  right  in  question,  without  any  consideration 
for  the  minority,  the  state  of  insanity,  or  imbecility.  (See  Arts.  60, 
61,  63,  65,  and  notes  111,  112.)  (3)  In  favour  of  the  soldier,  either 
as  heir  (Art.  58  compared  with  the  law  cited  in  note  100),  or  as 
plaintiff  for  full  restitution  in  all  the  other  cases  (Art.  73). 

As  for  the  others  having  right  to  Tapu,  to  whom  the  competent 
authority  must  make  —  as  to  all  those  having  right  to  Tapu  —  an 
offer  to  purchase  the  land  before  it  is  put  up  to  auction  (See  Art. 
59,  §§  7-9,  60-62,  64,  6H,  67,  77,  compared  with  Arts.  16-18  of  the 
Tapu  Law),  and  especially  Arts.  4  and  15  of  the  Regulations  about 
Tapu  title-deeds.  According  to  French  law,  the  sale  may  be 
rescinded  in  favour  of  the  Seller  "  if  he  has  been  injured  by  more 
than  seven-twelfths  in  the  rjrice  of  an  immovable  "  (Art.  1  674  of 
the  Civil  Code),  and  in  this  case  "the  purchaser  has  the  choice 
either  of  giving  back  the  thing  on  receiving  the  price  he  has  paid 
for  it,  or  to  keep  the  land  on^aying  the  rest  of  the  just  price,  with 
a  deduction  x)f  one-tenth  of  the  total  price  "  (Art.  1681).  But  "  the 
resc^sion  does  not  take  place  in  all  sales  which,  by  law,  can  take 
place  only  by  the  authority  of  justice  (judicial  authority)"  (Art. 
1684).  Also,  in  the  Roman  law  the  sale  can  be  cancelled  on 
account  of  laesio  enormis,  that  is  when  the  seller  has  received  a 


320 


The  Ottoman  Land  Code. 


Disability 
ot'  Tapu 
officials 
and  their 
relatives. 


price  less  than  half  the  real  price  (Lex  16,  §  4,  Dig.  4,  4 ;  Lex  22,  §  3  ; 
Lex  23,  Dig.  19,  2 ;  Lex  8,  Cod.  4,  44,  note  97,  Chap.  I.). 

But  at  the  sales  made  at  public  auction,  as  regards  the  question 
to  know  whether  the  adjudication  can  be  attacked  on  account  of  laesio 
enormis,  the  jurisprudence  of  the  supreme  tribunals  of  the  stir 
the  German  Empire  in  which  Roman  law  is  still  in  force,  is  divided 
in  this  respect  as  well  as  the  opinions  of  authors.  It  is  thus  that 
the  Supreme  Courts  of  Stuttgard  (1828  and  1845)  and  of  Munich 
(1855)  have  established  the  unimpeachability  of  the  adjudication 
on  account  of  enormous  injury,  that  is,  the  inadmissibility  of  the 
rescisio  ob  laesioneni  ultra  dimidium,  whilst  the  Supreme  Court 
of  Appeal  of  Jena  (1841)  and  of  Liibeck  (1850),  as  well  as  the 
faculties  of  law  of  Heidelberg  (1858)  and  of  Berlin  (1859)  have 
established,  on  the  contrary,  the  admissibility  of  the  rescission. 
See  1,  in  favour  of  rescission,  the  judgments  cited  in  the  archives  of 
SeufTert  mentioned  in  note  112,  vol.  vi. ;  No.  323,  xiii. ;  No.  224 
and  xx.  No.  120.  (2)  Against  the  admissibility,  the  Judg- 
ments, iv.,  No.  213,  4  ;  xi.,  No.  17. 

141.  A.  The  prohibition  of  Art.  88  is  in  conformity  with  the 
spirit  of  the  Ottoman  legislation,  which  prohibits,  under  penalty, 
its  public  functionaries  by  whom  the  farming  by  auction  of  the 
public  revenues  is  made,  from  becoming  purchasers.  Compare 
the  laws  respecting  the  farming  by  auction  of  the  indirect  taxes 
and  Art.  88  of  the  Penal  Code,  Laws  classed  in  the  Public  Law. 
See,  however,  also  Art  238  of  the  Penal  Code  with  regard  to 
obstacles  put  forward  to  the  freedom  of  auctions.  As  regards 
other  authorities  who  take  part  in  the  sale  by  auction,  see  ncte 
130.  B.  Roman  law.  According  to  the  Law  46,  Dig.  18,  1,  "it 
is  not  allowed  that  he  who  administers  a  thing  sh»uld  buy  it, 
neither  by  himself  nor  through  the  medium  of  another.  Such  a 
buyer  is  condemned  to  lose,  not  only  the  thing  bousht,  but  also 
four  times  the  value,  according  to  the  law  of  Severus  and  Antonine., 
even  if  he  were  the  Attorney  of  the  Emperor,  which  never  takes 
place,  however,  unless  there  be  a  contrary  privilege.  (See  also 
note  93.)  C.  French  law.  The  public  officers  of  the  national 
lands  of  which  the  sales  are  made  through  them  cannot  become 
purchasers,  neither  in  person  nor  through  the  medium  of  third 
parties,  on  pain  of  invalidity  (Art.  1 596  of  Civil  Code). 


Nofcs.  32 

1 12.  ( lom]  -2,  83,  and  note  136. 

Arts.  82,  83,  and  note  136. 
L,  §  4  :  Art.  5,  and  notes  5,  21-22. 

145.  See  the  following  note. 

Tin-  forests  of  the  Ottoman  Empire  being  divided  into  four  Public 

.  that  is,  (1)  forests  belonging  to  the  State ;  (2)  those  which 
appertain  to  the  administration  of  the  Evcaf. ;  (3)  Communal  Forests 
or  Baltalyks;  (4)  woods  and  forests  belonging  to  private  indi- 
viduals, all  that  concerns  the  last  category  having  been  treated 
in  the  Land  Law,  the  provisions  of  the  Forest  Law  have  no  appli- 
cation as  regards  the  said  woods  and  forests  of  private  persons 
(Art.  1  of  the  said  Regulations,  mentioned  in  note  60).  Never- 
theless, the  law  in  question  contains  also  provisions  relative  to 
communal  forests  (Baltalyks),  that  is,  those  of  the  articles  in 
question  to  which  the  said  Forest  Law  refers,  in  the  Arts.  21-26, 
of  which  here  is  the  text : — 

Art.  21.  The  Baltalyks  are  the  forests  which  from  all  time  have 
been  appropriated  to  the  parishes  for  their  use  and  benefit. 

Art.  22.  In  consequence,  and  in  virtue  of  Arts.  91  and  92  of  the 
Rural  Code,  the  inhabitants  of  these  parishes  have  alone  the  right 
to  profit  by  them,  to  the  exclusion  of  those  of  neighbouring 
parishes  and  all  other  individuals. 

Art.  23.  Private  persons  are  prohibited  from  buying  from  a 
parish  any  portion  whatsoever  of  the  soil  of  a  Baltalyk,  or  any 
number  whatsoever  of  trees  to  profit  by  them  standing.  In  a  word, 
the  alienation  of  any  portion  whatsoever  of  the  ground  or  the 
surface  is  prohibited  except  for  regular  exploitation. 

Art.  24.  In  lawsuits  relative  to  Baltalyks  it  is  prohibited  by 
Art.  102  of  the  Rural  Code«to  put  forward  the  plea  of  prescription. 

Art.  25.  The  inhabitants  of  a  parish  profit  by  their  Baltalyk 
either  individually  or  in  confmon.  The  wood  cut  for  a  commercial 
purpose  shall  pay  the  tithe. 

Art.  26.  The  inhabitants  a*re  bound  to  watch  over  the  preservation 
of  their  Baltalyks.  Instructions  concerning  the  police  of  these 
forests  will  be  published  subsequently,  and  the  agents  of  the  public 
force  will  be  bound  to  act  jointly  with  the  Mukhtars  to  carry  them 
out. 

To  complete  what  has  been  said  as  regards  woods  and  forest?, 

Y 


22 


The  Ottoman  Land  Code. 


Inalien- 
ability of 
parish 
forests. 


belonging  to  each,  of  these  categories  the  following  observations 
must  be  added. 

A.  Parish   forests  (Baltalyks).     As  is  seen,  the  modifications 
made  in  the  Law  in  question  consist  only — (1)  In  the  prohibition 
that  not  only  the  State  (Art.  92  of  the  Law)  but  not  even  the 
commune  (parish)  can  alienate  any  portion  whatsoever  of  the  land 
or  of  the  surface  (Art.  23  of  the  Forest  Law).     As  for  the  right  of 
superficies  on  State  land,  to  make  a  wood,  see  Art.  29  and  note 
134.    (2)  In  the  subjecting  to  Tithe  wood  cut  down  for  commercial 
purposes  (Art.  25),  and  this  because,  according  to  the  statement  of 
the  reasons  of  the  said  Law,  "  they  have  the  right  to  sell  the  wood 
produced  by  their  Baltalyks."    As  regards  their  right  to  profit 
by  the  domainal  forests,  see  below  (Forests  of  the  State).     (3)  In 
the  government  superintendence,  besides  that  of  the  inhabitants  con- 
cerning the  police  of  the  forests,  provisions  which,  according  to  the 
statement  of  the  motives  of  the  said  Law,  "  have  been  taken 
to  ensure  the  preservation  of  the  communal  forests,"    As  to  the 
identical  provisions  of  the  Code  and  of  the  Kegulations,  as  concerns 
(A)  the  enjoyment  and  the  inalienability  of  the  communal  forests 
(Arts.  91-92  of  the  Code,  21-23  and  25  of  the  Kegulations)  see  the 
notes  147,  149,  and  152  ,•  and  as  regards  the  imprescri  ptibility, 
(Art.  24  of  the  Kegulations)  see  Art.  102  of  the  Code  and  note 
157.      Compare  also  Art.   12  of  the  Regulations   of  the   Mines. 
B.  Forests  of   the    State.     According  to  the   statement   of    the 
reasons  of  the  said  Law,   "as  all  the  communes  do  not  possess 
Baltalyks,  and  as  besides  they  enjoyed  long  since  the  right  to  take 
gratuitously  in  the  forests  of  the  State  all  the  wood  necessary  for 
their  use,"  it  has  been  decided  that  the  right  of  enjoyment  should 
be  given  to  them,  but  subjecting  them  to  certain  rules.     It  is 
thus  that  by  the  provisions  of  Art.  5  of  the  same  Law,   "  the 
inhabitants  of  the  communes  will  be  authorised  to  take  gratuitously 
in  the  forests  of  the  State  the  wood  foi  their  use,  such  as  for  build- 
ing and  repairing  their  houses,  barns,  stables,  carts,  agricultural 
implements;    also  all  the    wood  necessary  for  their  household. 
Besides  this,  the  wood  and  charcoal  which  they  may  transport  by 
their  carts  and  beasts  of  burden  to  be  sold  in  the  bazaar  of  their 
commune  will  also  be  given  to  them  gratuitously."     But  if  it  be  a 
question  of  considerable  quantities  or  of  sales  to  take  place  outside 
the  market  above  mentioned,  they  will  be  bound  to  pay  a  price. 


Notes.  323 


"The  inhabitants  of  the  communes  will  U-  assimilated  to  traders 

and  be  bound  to  conform  to  the  provisions  of  the  JU-gnl:iti<»ns  <•!'  w<««..ls  and 

'.»rests  as  regards  the  wood  they  wish  to  trade  in.  A  special 
regulation,  relative  to  the  control  to  be  exercised  by  the  Administra- 
tion about  gratuitous  deliveries  will  be  ultimately  promulgated." 
Also,  according  to  Art.  17,  "The  inhabitants  of  the  commune 
may  be  authorised  by  the  forest  agent  to  gather,  without  paying 
anything,  dead  wood  lying  in  the  forests  of  the  State  situated  on 
the  territory  of  their  commune."  But  besides,  tte  same  inhabi- 
tants have  also  a  right  of  pasturage  for  their  beasts  in  these  forests, 
regarding  which  see  Arts.  13-16  and  43-45  of  the  same  Law, 
and  note  152.  C.  Forests  of  private  individuals.  It  is  already 
known  that  the  provisions  of  Art.  28  of  the  Law,  accord- 
ing to  whi<  !ies  come  spontaneously  (on  land  mine)  can 
neither  be  cut  down  nor  carried  away  by  the  owner  of  the  soil  nor 
by  <any  one,  because  they  belong  to  the  State,  has  been  annulled  Repeal  of 
by  Imperial  ordinance  (see  note  60).  However,  according  to  the  old  law. 
statement  of  the  grounds  for  the  Law  in  question,  the  State, 
in  virtue  of  the  said  Art.  28,  would  have  the  right  of  using 
gratuitously  the  woods  and  forests  depending  on  the  domainal 
lands  occupied  by  private  persons.  This  right,  however,  has  not 
been  exercised  hitherto,  and  the  holders  of  the  forests  have  con- 
tinued to  benefit  by  it  exclusively.  It  is  for  this  that  the  Regula- 
tions concerning  the  furnishing  wood  suited  to  the  service  of  the 
marine  and  the  artillery,  although  promulgated  some  days  before  the 
promulgation  of  the  said  ordinance,  does  not  fix  in  favour  of  the 
State  the  right  of  servitude  over  the  private  forests,  that  is,  to  take 
wood  for  the  service  of  the  marine  and  the  artillery,  but  exception- 
ally and  with  the  condition  that  the  trees  to  be  taken  must  be 
at  least  two  archines  in  circumference  at  one  and  a  half  archines 
from  the  ground.  Trees  existing  in  enclosed  gardens  as  well  as 
those  situated  round  habitations  are  excepted  from  this  bondage 
(Art.  11  of  the  said  Regulations  relative  to  the  marine).  But 
as  regards  those  rare  pieces  that  may  have  to  be  chosen,  it  is 
just,  says  the  same  report,  "  that  the  State  should  pay  its  value." 
It  is  thus  that  the  valuation  in  money  shall  take  place  in  the 
presence  of  the  proprietor  (Art.  15  of  the  said  Regulations),  and  if 
the  agents  of  the  Forest  Administration  cannot  agree  with  the 
owner  about  the  price  of  the  wood,  experts  (khibres)  named  by  the 

Y  2 


324  The  Ottoman  Land  Code. 

local  authorities  will  be  appointed  to  fix  it,  and  their  decision  must 
be  accepted  by  the  Forest  Administration  and  the  owner  (Art.  16, 
eod.).  As  regards  the  observation  of  the  said  statement  of  reasons 
that  the  State  shall  have  the  right  of  cutting  down  trees  in  the 
forests  of  private  persons,  it  must  be  observed  that  it  makes  allusion 
probably  to  forests  created  by  trees  growing  spontaneously  in  the 
earth  ('Art.  28),  and  to  woods  descended  from  father  to  son  or 
bought  from  third  parties,  held  by  Tapu  (Art.  30),  and  not  to 
forests  created  by  trees  planted  by  permission  of  the  authorities 
which  have  become  Mulk  (Art.  29).  However,  after  the  abolition 
of  the  right  of  owneiship  by  the  State  over  teres  come  up  spon- 
Private  taneously,  there  must  be  recognised  always  two  kinds  of  private 
\viiods.  woods — the  woods  held  by  Tapu  either  as  a  dependence  of  the 
ground  or  as  the  principal  object  of  possessim  •),  and  the 

Paramount  woods  held  as  freehold  (Mulk).  The  right  of  the  iState  to  take  the 
right  of  trees  necessary  to  the  marine  and  the  artillery  includes  without 
distinction  all  kinds  of  woods  belonging  to  private  individuals. 
With  respect  to  the  French  legislation  relative  to  the  woods  of 
private  persons,  compare  Arts.  2  and,  117-121  of  the  Forest  Code. 
Forests  of  D.  Forests  of  the  Vacoufs.  "  These  forests  are  assimilated  to 
Vakfs.  the  lands  depencU-nt  on  the  Evcaf.,  of  which  the  revenues  are  ex- 
pended in  maintaining  the  foundations  to  which  these  lands  are 
dedicated  (Art.  19  of  the  Law).  They  have  also  been  subjected 
to  the  same  Law  for  their  preservation ;  and,  as  regards  the  right 
of  the  State  to  take  wood  for  the  service  of  the  marine,  they 
have  been  subjected  to  the  same  regulations  as  the  woods  of  private 
persons,  with  the  exception  only  as  to  the  restriction  of  the 
measure  of  the  trees  to  be  taken.  (Compare  the  whole  text  of 
the  said  Law  with  the  statement  of  the  motives  in  the  '  Droit 
Admiiiistratif,'  Leg.  Ott.  Vol.  II.,  under  the  title  "  Forests.") 

Highways,       147.  A.  Mussulman  law.     The  places  belonging  to  no  one  at  d 
&c.  those  belonging  to  all,  as  mosques,  streets,  public  places,  roads, 

&c.,  are  used  by  each  one,  but  no  one  can  become  their  proprietor ; 
so  that  when  one  leaves  his  place  in  such  a  place  another  can  come 
and  occupy  it,  and  the  first  when  he  comes  back  has  not  the  right 
to  turn  him  out.  Every  one  is,  however,  bound  to  make  use  of 
these  things,  so  as  not  to  impede  the  use  of  them  by  others,  as  for 
example,  to  sit  in  the  middle  of  the  road  or  the  street,  which 


Notes.  325 


would  interfere  with  tin1  fTornauw,  '  Droit  Mussulman,' 

Sect.  11,  chap,  iv.,  p.  286.)  It  is  in  virtue  of  th;a  principle  of  an(l  ?ther 

••a  law  oi"  Mussulmans,  similar  also  to  other  legislations, 
that  the  Ottoman  law  in  particular  (1)  has  laid  down  in  Arts. 

!  and  H'li,  the  prohibition  against  all  private  property  in 
public  localities,  their  inalienability  and  imprescriptibility ;  and 
(2)  has  sanctioned  these  provision^  by  Art.  264  of  the  Penal 
Code,  in  virtue  of  which  will  be  punished  by  imprisonment  and  a 
fine,  those  who  may  have  injured  the  public  roads,  the  places,  the 
walks,  or  other  places  of  public  utility,  or  who  have  encroached  on 
them  in  their  length  and  breadth.  The  offenders  shall  also  be 
condemned  to  pay  the  cost  of  repairs  and  to  restore  the  ground 
encroached  <  'ompare  also  Arts.  133  and  254  of  the  said 

Penal  Code  (Le_,  Ott.  Vol.  II.),  and  the  Regulations  respecting 
Roads  and  Buildings,  dated  25.  Zilcade,  1278  (Leg.  Ott.  Vol.  III., 
Establishments  and  Institutions  of  Common  Interest).  B.  Roman 
law.  "  The  prator  prohibits  the  building  in  a  public  place  and 
issues  an  interdict,  that  is,  prohibits  anything  to  be  done  in 
a  place  or  public  road "  (Lex  1,  Dig.  43,  8),  and  by  this  inter- 
dict the  prsetor  takes  care  not  only  of  the  interest  of  the  public, 
but  also  of  that  of  private  individuals ;  for  the  public  places  are 
destined  to  the  use  of  private  persons  who  use  them,  not  as  their 
private  property  but  in  virtue  of  the  right  of  all ;  and  each  person 
has  as  much  right  to  use  them  as  he  had  to  hinder  us  from  doing 
it.  This  is  why,  if  any  one  has  made  in  a  public  road  a  work 
which  does  injury  to  a  single  individual,  he  can  be  prosecuted 
in  virtue  of  this  prohibitory  interdict,  and  it  is  for  this  that  it 
has  been  made  (Lex  2,  §  3,  eod.).  But  by  the  denomination 
"publici  loci"  public  places  must  be  understood — the  places,  the 
islands,  the  fields,  the  roa5s,  and  the  public  roads  (Lex  2,  §  3, 
eod.),  and  in  general  "al!0the  places  destined  to  public  use" 
(Lex  2,  §  5,  eod.).  That  this  interdict  is  prohibitive,  compare  the 
Law  2,  §§  1,  10,  16-18,  an^  the  Law  7,  Dig.  eod.  As  regards  the 
other  interdict  which  prohibits  doing  anything  in  a  public  road 
which  may  deteriorate  it,  and  which  by  the  denomination  of 
"  public  way  "  includes  the  one  of  which  the  soil  itself  is  public 
(because  the  soil  of  a  private  road  belongs  always  to  the  owner  of 
the  land  who  has  made  it,  although  the  private  road  is  also  called 
"via  publica"  when  all  the  world  is  allowed  to  use  it.  (Compare 


326 


The  Ottoman  Land  Code. 


Kural 
roads. 

Urban 
streets. 


Places  of 
worship, 
&c. 


the  Laws  2,  §§  20-22,  25-32  eod.,  and  notes  2,  22  and  33,  34.)  But 
this  interdict  regards  only  rural  roads,  and  does  not  concern  the 
streets  of  towns,  of  which  the  magistrates  have  the  care  (Lex  25, 
eod.) ;  that  is,  the  Ediles  (dorwo/uKol)  who  ought  to  take  care  to 
prevent  diggings  in  the  streets,  and  buildings,  by  inflicting  fines 
on  the  oifeuder  and  by  destroying  what  he  may  have  done. 
"  'ETrijueAeio&ocrai'  8e  (01  a<rr,vi/ojLUKoi)  OTTWS  p,rj8els  opvcraTj,  ras 
odovs,  /z?7§e  ^vvvr)  /z^Se  KTIO-T]  els  ray  odovg'  el  oe  ^,  6  p,ev  dovXos 
viro  TOV  evTv%6vTOs  p.ao~Tiyoixrd(t),  6  de  e'Aev$epo?  fvbeiKvvo~6(0  rols 
d(TTw6p,ois,  ol  de  do-rvvo/Jiot  £r)p.ioi>Ta>(rav  Kara  TOV  vopov,  KOI  TO 
yeyovbs  KaraAveVooo-cu/ "  (Leo  1,  §  2,  Dig.  43,  10).  French  law. 
Compare  Arts.  538,  542,  714  of  the  Civil  Code ;  Art.  471,  §§  4-7  of 
the  Penal  Code,  Law  on  Parish  Koads ;  Arts.  10  and  21,  the 
special  law  on  the  deterioration  of  roads  of  the  2&th  Sept.,  1791 ; 
as  also  the  note  149  (C). 

148.  A.  Mussulman  law.  Places  for  prayer  (mekian  nainaz) 
should  be,  from  their  nature  pure  and  authorised  by  the  law.  To 
all  others  should  be  preferred  the  places  especially  dedicated  to 
prayer,  as  the  mosques,  or  the  places  which  are  the  property  of 
no  one,  as  the  desert  or  the  uncultivated  country.  It  is  not 
lawful  to  pray  on  private  property  without  "the  consent  of  the 
owner.  (Tornauw,  '  Droit  Mussulman/  page  54.)  It  must  be 
observed  that  instead  of  the  phrase  "edifices  destined  for  prayer'* 
of  the  text,  the  Greek  translation  of  the  Code  says  the  places 
destined  for  prayer  (namazghiah)  with  a  note  of  remark  that  in 
certain  provinces  of  the  Ottoman  Empire  where  there  is  no  "  Jami  '* 
sufficiently  vast  for  the  inhabitants,  there  are  places  surrounded  by 
trenches  or  walls  in  which  the  Mussulmans  say  their  prayers 
called  namaz,  every  Friday  and  the  other  holidays.  (See  the 
Ottoman  Code  of  M.  Nicolaides,  pagp  452.)  It  seems  then  that 
the  law  includes  places  of  this  sort  destined  for  prayer,  and  not 
edifices  in  general,  which  it  does  not  mean.  B.  Koman  law: 
"  It  is  prohibited  to  do  anything  in  a  sacred  place,  and  it  is  ordered 
to  remove  what  one  has  done,  and  this  out  of  regard  for  religion  " 
(Lex  2,  §  19,  Dig.  43,  18).  The  care  and  the  superintendence  of 
the  edifices  and  sacred  places  are  confided  to  those  who  are 
appointed  to  keep  in  repair  the  sacred  edifices  (Lex  1,  §  3,  Dig. 
43,  7). 


Notes.  327 


As  regards  the  inalienability  of  the  sacred  places :  "  If  all  that  is  I*alien- 

crt-«l,  «T  public  be  sold,  the  sale  is  void  (Lex  22,  Dig.  at 
18,  1);  and  it  is  for  this  that  religious  plar«-s  (loca  religiosa),  that  p|aceg< 

which  there  has  been  an  interment  of  a  dead  person, 
contained  in  a  piece  of  ground  sold,  does  not  pass  to  the  buyer,  and 
he  cannot  bury  a  dead  person  in  it  (Pauli  Sent.  1,  21,  §  7).     See 
the  following  note : —  . 

149.  A.  'Droit  Mussulman.'  As  regards  the  inalienability  of 
public  places,  that  is  of  lands  metruke,  left  for  the  use  of  one  or 
many  communes,  or  for  the  population  in,  general  (Art.  5),  the 
Ottoman  law  has  adopted  the  same  principles,  as  the  Mussulman 
law.  "  Things  which  cannot  become  private  property  (res 
communes  publics)  cannot  be  the  object  of  a  sale.  It  is  for  this 
reason  that  all  contracts  for  sale  or  purchase  are  contrary  to  law, 
which  have  for  their  object  pasturages,  streams  of  water,  lakes,  free 
men,  things  consecrated  (mevkuf),  with  the  exception,  as  regards 
these  last,  of  those  which,  though  consecrated  to  a  use  agreeable  to 
God,  would  be  deteriorated  or  destroyed  for  want  of  being  sold 
(Tornauw,  '  Droit  Mussulman,1  page  117).  Besides  the  places 
mentioned  in  Arts.  92-94,  there  are  also  inalienable  the  sites  for 
fairs  or  markets  (Art.  95),  stacks  (Art.  96),  pasturages  (Art,  97), 
places  for  camping  or  commonage  and  for  use  as  pasturage  during 
summer  and  winter  (Art.  101).  As  regards  their  imprescriptibility, 
see  Art.  102  and  note  157.  B.  Roman  law.  Things  which  from 
their  nature  are  not  commercial  (res  extra  commercium)  are 
inalienable.  Thus  "  one  can  legitimately  sell  everything  one  can 
have,  possess  or  follow;  but  one  cannot  alienate  anything  that 
nature  or  common  right  and  received  custom  has  withdrawn  from 
commerce"  (Lex  34,  §  1,  pig.  181),  and  for  this  reason  "one  cannot 
buy  anything  that  one  knows  is  not  susceptible  of  being  sold,  such 
as  things  sacred  and  religious  places,  and  those  which  are  not  in 
trade,  such  as  public  places  which  do  not  belong  to  the  people,  but 
are  destined  for  public  we,  as  the  Champ  de  Mars  "  (Lex  6  pr., 
eod).  C.  French  law.  (a)  Things  common  or  public.  There  are 
things  which  belong  to  no  one  and  of  which  the  use  is  common  to 
all.  Police  laws  regulate  the  mode  of  using  them  (Art.  714  of  the 
Civil  Code).  Thus,  the  roads  and  streets  taken  care  of  by  the 
State,  the  great  rivers  and  navigable  rivers,  &c.  &c. ;  and  gener- 
ally, all  parts  of  French  territory  which  are  not  susceptible  of 


328  The  Ottoman  Land  Code. 

becoming  private  property  are  considered  as  dependencies  of  the 
public  domain  (Art.  538).  These  things  as  res  extra  commercium 
are  inalienable  and  imprescriptible  (arg.  ex  Arts.  1598  and  2226). 
(6)  Communal  property.  The  communal  property  is  that  to 
which  or  to  whose  produce  the  inhabitants  of  one  or  more  com- 
munes have  an  acquired  right  (Art.  542).  As  regards  alienation, 
property  which  does  not  belong  to  private  individuals  is  administered 
and  cannot  be  alienated,  but  according  to  the  forms  and  rules  which 
apply  to  them'  (Art.  537).  As  regards,  then,  the  alienation  of 
communal  property,  compare  the  law  of  the  18th  July,  1837, 
chapter  4,  and  chapter  5,  with  regard  to  the  actions  relative  to  it. 
As  regards  communal  woods,  compare  Art.  90  and  the  following  of 
the  Forest  Law,  and  Art.  128  and  the  following  of  the  Ordinance 
of  the  1st  Aug.  1827. 

150.  See  the  preceding  notes,  147  to  149. 

151.  See  notes  147  to  149. 

Common  152.  Besides  the  right  of  making  use  of  the  communal  pasturage, 
pastures,  the  inhabitants  of  the  communes  have  also  the  right  of  pasturage. — 
(1)  In  the  forests  of  the  State  under  certain  restrictions,  a  right 
which  the  legislator  found  himself  obliged  to  grant  in  Arts.  13  to  15 
of  the  Forest  Law,  on  account  of  the  immemorial  exercise  of  this 
right,  as  well  as  the  French  legislator,  compare  Arts.  61-85  of  the 
French  Forest  Code  concerning  the  right  of  usage  in  the  woods  of 
the  State,  and  as  regards  the  right  of  pasture  of  the  communes 
(Art.  64).  Provisions  relative  to  the  right  of  pasturage  in  the 
forests  of  the  State  are,  according  to  the  Law,  the  following  : — 

Art.  .13.  Every  year  the  Mouktar  of  each  commune  must  give  to 
the  local  forest  agent  a  statement  showing  the  kind  and  the  number 
of  beasts  which  the  inhabitants  wish  te  bring  to  the  forests  of  the 
State. 

Art.  14.  The  forest  agent,  after  having  made  himself  acquainted 
with  this  statement,  will-  name  the  district  into  which  the  flocks 
and  herds  may  be  admitted  ;  he  will  fix  the  date  and  the  length 
of  the  commonage  as  well  as  the  conditions  which  they  are  to 
observe. 

Art.  15.  The  beasts  belonging  to  the  inhabitants  of  the  same 
commune  will  be  placed  under  the  superintendence  of  a  common 


Notes.  329 

iian  shepherd,  who  will  take  care  that  the  limits  fixed  for  the      $ 
past  ura -_:o  are  not  exceeded. 

Art.  H5.  The  dealers  in  beasts,  strangers  to  the  commune,  who  Pasturage 
desire  to  station  their  flocks  and  herds  in  the  forests  of  the  State,  J£  State 
must  obtain  the  authorisation  from  the  local  forest  agent,  who  will 
iix  where  they  may  be  stationed.     These  owners  will  be  subject  to 
a  payment  in  accordance  with  the  existing  rules  and  prescriptions. 

Art.  4o.  It  is  unlawful  to  feed  any  animals  whatsoever  in  the 
forests  of  the  State  under  a  penalty  of  a  fine  of  one  piastre  per 
animal,  payable  by  the  owner.  In  the  case  of  unauthorised 
pasturage,  there  will  always  be  a  claim  for  damage,  which  cannot 
be  less  than  the  simple  fine. 

Art.  44.  When  the  animals  found  trespassing  are  part  of  a 
communal  flock,  the  prosecution  will  be  against  the  guardian  of  the 
flock. 

Art.  50.  The  owners  will  be  joint  guarantors  for  the  judgments 
given  against  the  guardians  of  their  flocks,  with  the  right  of  action 
against  them. 

Art.  52.  The  insolvent  offenders  who  may  not  have  solvent  joint 
guarantees,  will  be  imprisoned  for  a  time  containing  as  many  days 
as  the  condemnation  pronounced  would  make  so  many  times  two 
Beshliks. 

The  same  inhabitants  have  also  (2)  another  right  of  pasturage  Lands 
in  the  lands  Otlak,  where  the  grass  grows  very  short,  and  which,  as  Otlak. 
dead  land,  is  not  held  by  Tapu  (see  Art.  105).     As  to  private 
pasturages  which  depend  on  Chiftliks,   see  Art.  99.     As  regards 
the  Roman  law,  compare  Chapter  LX.  of  the  Book  XI.  of  the  Code 
"  De  pascuis  publicis  et  privatis." 

153.  That  is  to  say,   the  contents   inscribed  in   the  Imperial  Limits  of 
archives.     Consequently,  the  jnbabitants  of  the  communes  cannot  Pasture  to 
acquire  by  usucaption  in  the  name  of  their  commune  any  right  of  served" 
pasturage  on  the  domanial  lands  not  inscribed  in  the  said  archives 

as  destined  to  the  use  of  the  communes. 

154.  See  the   sense  of  Chiftlik,  in  Art.   131.      As  to  private 
pasturage  according  to  Roman  law,  compare  note  152  in  fine. 

155.  "  The  yard  signifies  the  habitation — or,  better,  the  encamp-  lourt. 
ment— of  agricultural  people  and  shepherds ;  in  a  word,  the  group 


330 


The  Ottoman  Land  Code. 


of  four  or  five  huts  together,  such  as  they  are  seen  still  in  our  days 
in  the  environs  of  Kutahia  "  (Belin,  No.  328,  note). 

156.  For  the  meaning  of  the  words  "kishlak"  and  "yaylak," 
see  note  52 ;  compare  also  Art.  24. 

157.  As  the  communes  cannot  invoke  the  usucapion  against  the 
State  beyond  the  limits  established  for  the  communal   pasture 


No  pre- 
scription 

forests^  &c.  groun(^s  (Art.  98,  note  153),  in  the  same  manner  no  person  can 
invoke  the  usucapion  as  regards  land  left  for  the  public  use  of  the 
communes  or  of  the  population,  which  are  imprescriptible  (compare 
also  Art.  24  of  the  Forest  Law,  note  146) ;  and  this  in  conformity 
— (a)  to  Roman  law,  according  to  which  "it  is  not  allowed  to 
grant  the  prescription  of  immemorial  possession  to  acquire  public 
places  according  to  the  rights  of  people"  (Lex  45,  Dig.  41,  3). 
Also,  principally  things  incorporeal  are  susceptible  of  usucapion, 
except  things  sacred,  holy,  public,  &c.  (Lex  9,  eod.) ;  and,  as 
regards  public  roads  especially,  "  the  people  cannot  lose  a  public 
road  from  non-use"  (Lex  2,  Dig.  43,  11);  (b)  to  French  law, 
according  to  which  "  one  cannot  prescribe  the  ownership  of  things 
which  are  not  in  trade  "  (Art.  2226  of  the  Civil  Code).  See,  how- 
ever, Art.  2227  as  regards  "  communal  property." 

Movat,  158.  See  above,  Art.  6,  note  23,  and  notes  161,  162.     Compare 

also  Arts.  12  to  13  of  the  Regulations  regarding  Tapu  Title- Deeds. 
According  to  the  definition  of  the  *  Hidaia,'  a  work  on  Mussulman 
jurisprudence  (which,  besides,  has  been  translated  into  English  to 
serve  as  a  guide  in  the  administration  of  justice  in  India),  and  of 
which  the  doctrine  on  this  subject  is  exposed  in  note  161,  "  Mevat" 
means  any  piece  of  unproductive  land,  either  from  want  of  water  or 
by  the  fact  of  inundation,  or  from  any  other  cause  which  prevents 
its  cultivation ;  it  is  called  "  Mevat,'*  dead,  because,  in  the  same 
manner  as  the  thing  struck  dead,  it  is  of  no  use.  Text  cited  by 
Worms  in  the  '  Asiatic  Journal,'  Oct'.,  1842,  page  363.  See  Belin, 
note  221  following. 

Tashlik.  159.  That  is  "  stony  ground  which  cannot  be  cultivated  until 

being  cleared  "  (Belin). 

160.  "Pasturage,  ground  where  very  short  grass   grows,  and 

which  serves  for  pasturage  "  (Belin).     Compare  Art.  127. 
Mevat.  161.  A.  Mussulman  law.    According  to  the  doctrine  mentioned  in 

the  '  Hidaia'  (see  note  158),  every  piece  of  ground  which  for  a  long 


Notes.  331 

time  has  remained  uncultivated,  without  belonging  to  anyone,  or  Ara«i 
that  has  been  formerly  the  property  of  a  Mussulman  actually  Mevat. 
unknown,  and  which,  at  the  same  time  is  sufficiently  distant  from 
the  village  that  from  it  the  human  voice  cannot  be  heard,  is  called 
"  Mevat."     Whoever  cultivates  an  uncultivated  ground,  with  the 
permission  of  the  Imam,  obtains  it  as  a  property.     "  Abou  Hanifa  " 
makes  of  the  permission  of  the  Sovereign  a  condition  "  sine  qua 
non,"  whilst  his  disciples  think  that  without  that  authorisation  the 
property  is  acquired  by  right  by  him  who  cultivates  it.     "  If  au 
individual  separates  a  piece  of  ground,  and^  after  having  placed  Disposal  of 
marks  with  stones  or  otherwise,  leaves  it  abandoned  for  three  years  vacant 
without  cultivating  it,  the  Imam  may,  in  this  case,  retake  it  and 
grant  it  to  another ;  for  this  ground  had  been  given  with  the  inten- 
tion of  its  being  made  productive,  and  in  order  that  a  benefit  might 
result  from  it  to  the  Mussulman  community  by  the  levying  of  tithes 
or  tribute,  &c."  (see  Belin,  note  221,  and  following,  where  the 
different  opinions  of  Mussulman  jurisconsults  are  exposed  in  detail. 
Compare  also,  Tornauw, '  Droit  Mussulman,'  pages  824, 826).    As  is 
seen,  the  Ottoman  law  admits  precisely  this  doctrine ;   and  as 
regards  specially  the  condition  "  sine  qua  non "  of  the  Sovereign 
permission,  it  has  conformed  to  the  opinion  of  the  founder  of  the 
"  doctrine  Hanefite  "  which  has  prevailed  in  Turkey,  adopted  by  the 
Ottoman  jurisprudence.     The  only  difference  which  exists  between 
the  doctrine  and  the  legislation  consists  in  the  provision  of  the  law 
that  the  grant  of  the  land  may  be  given  only  on  condition  to 
rise  again  for  that  of  the  Beit-el-Mal ;  that  is,  to  become  the  simple 
possessor  by  Tapu ;  whilst,  according  to  the  doctrine  based  on  these 
words  of  the  Prophet :  "  Whoever  revives  dead  ground  becomes  its 
owner,"  the  person  who  obtains  the  grant  becomes  owner,  and  on 
account  of  this  precept  the  disciples  of  Abou  Hanifa,  as  well  as  other 
orthodox  doctors,  do  not  consider  as  essential  the  Sovereign  permis- 
sion, and  for  the  same  reason  probably  the  law  does  not  entirely 
deprive  the  cultivator  without  permission  of  the  right  of  becoming 
owner,  but  obliges  him   only  to  pay  Tapu;  in  other  words,  it 
establishes  in  his  favour  a  right  of  preference  on  the  land  cultivated 
in  the  case  of  a  concession  asked  for  by  another.     The  law  estab- 
lishes also  the  right  of  property  (Mulk),  but  only  in  favour  of  him 
who,  with  the  Sovereign  authorisation,  has  filled  up  a  place  taken 
from  the  sea  (Art.  132).     B.  Koman  law.     Ownership  is  extin- 


33 2  The  Ottoman  Land  Code. 

* L__ 

Abandoned  guished  by  "  derelictio ; "  that  is,  by  the  abandonment  of  the  object, 
lands.  which  is  considered  as  "res  nullius"  until  another  person  by 
occupation  has  acquired  the  ownership  of  it :  "si  rem  pro  derelicto  a 
domino  habitam  occupaverit  quis,  statim  eum  dominium  effici :  pro 
derelicto  autem  habetur,  quod  dominus  ideoque  statim  dominus  esse 
desinit"  (Inst.  2,  1).  Also,  we  can  acquire  a  thing  if  we  know 
that  its  proprietor  has  abandoned  it.  But  Proculus  is  of  opinion 
that  it  does  not  cease  to  belong  to  the  owner  until  it  is  taken 
possession  of  by  another.  But,  according  to  Julian,  it  ceases  to 
belong  to  the  person  who  abandons,  but  it  cannot  belong  to  another 
if  it  is  not  possessed  and  justly  (Lex  2,  Dig.  41,  7).  According  to 
M.  Guizot  (cited  by  Belin,  note  258),  land  subject  to  the  land  tax 
and  abandoned  by  its  owner  fell  to  the  Curie  (court),  which  was 
bound  to  pay  the  tax  until  someone  was  found  who  would  undertake 
to  do  it.  As  regards  specially  the  legislation  relative  to  private  or 
domanial  lands,  abandoned  or  left  uncultivated  and  desert  by  the 
owner  or  holder,  compare  Chapter  LVJII.  of  Book  XI.  of  the  Code, 
"De  omni  agro  deserto  et  quando  steriles  tertilibus  imponuntur"; 
also  Chapter  VII.  of  Book  XXXI.  of  the  Digest,  "  pro  dere- 
licto." C.  French  law.  According  to  the  same  author,  "Under 
the  second  race  of  the  kings  of  France  the  number  of  desert  and 
uncultivated  lands  was  immense ;  cultivators  and  even  owners  of 
the  soil  were  wanting ;  more  than  one  incumbent,  in  establishing 
himself  on  the  domain  he  had  received,  considered  as  his  property 
the  solitude  which  surrounded  him ;  and  the  King  easily  granted  to 
these  incumbents  lands  which  they  had  cultivated  or  simply  occu- 
pied "  (Guizot,  cited  by  Belin,  note  259).  According  to  a  decree  of 
the  6th  Aug.,  1766,  lands  of  whatever  quality  or  kind  they  are,  which 
for  forty  years,  according  to  public  notoriety,  may  not  have  given 
any  crop,  will  be  considered  "  uncultivated  land,"  and  by  a  declara- 
tion of  the  13th  Aug.  of  the  same  y^ear  it  was  decreed  that  those 
who  would  clear  the  said  uncultivated  lands  would  enjoy  as  regards 
these  lands  for  fifteen  years  exemption,  from  taxes,  &c.,  the  whole, 
however,  with  the  undertaking  by  them  not  to  abandon  the 
cultivation  of  the  lands  actually  under  cultivation  of  which  they 
may  be  the  owners,  usufructaries  or  farmers,  under  pain  of  forfeiting 
the  said  exemptions. 

Jibal  162.  These  kinds  of  wood  may  then  be  considered  as  things 

Mubah.        which  belong  to  no  one,  of  which  the  use  is  common  to  all,  and  it  is 


Notes.  333 


for  this  that  the  law  has  subjected  them  to  Dearly  the  same  rules  Jih$l 
as  public  lauds  (Metruke).     Compare  Art.  5,  §  1,  Art.  30  and  106.  Mubah. 
However,  it  must  be  observed  that  the  Forest  Law  does  not  con- 
sider these  forests  as  di  tie  rent  from  the  others,  so  that  they  may 
be  considered  as  belonging  to  the  State,  in  opposition  to  the  Law, 
which  considers  them  as  "res  communis  omnium,"  but  as  the  Law 
is  applicable  only  to  forests  which  are  declared  "  forests   of  the 
"  (see  Art.  2  of  the  Law),  the  question  may  present  itself  as 
to  whether  the  Government  can  or  not  subject  the  said  forests  to 
the  actual  regime  of  the  Law. 

163.  See,  in    note   120,   the  meaning  of   the  word    "otlak." 
Compare  also  Art.  103. 

164.  It  must  be  observed  that  it  is  not  here  a  question  of  non-  Trees  of 
bearing   trees  planted   with   authorisation   (Art.  29),  or   of  those  na 
grafted  or  raised  (Arts.  26,  &c.).     Compare  Art.  28  modified  and  S™ 
note  146. 

165.  See  Art.  4  (2). 

166.  A.    Ottoman    Metallurgic  law    (Rf  gulations    of   Mines).  Ownership 
The  provisions  of  Art.  107  have  been  essentially  altered  by  the  of  metals 
Regulations  of  Mines,  dated  4.  Mouharem,  1286  (3rd  April,  1861), 

which  has  repealed  also  the  preceding  law  of  the  Mines  of  1861.  By 
the  Regulations  in  force  there  has  been  regulated  in  detail  the  mode 
of  the  concession  and  the  working  of  the  mines  of  the  Empire. 
However,  it  contains  provisions  by  which  the  right  of  mining 
ownership  has  been  diminished,  substituted  by  another  separate 
right  relative  to  mines;  that  is,  by  their  being  worked  by  third 
parties,  granted  by  the  Government  hi  virtue  of  an  Imperial  decree. 
The  provisions  relative  to  the  right  of  the  owner  to  a  fixed  payment, 
payable  by  the  grantee,  are  contained  in  the  following  articles  of  the 
Regulations,  of  which  the  entire  text  is  found  classed  in  the 
administrative  law  under  the  title  "  Mines  "  : — 

Art.  39.  Every  grantee  ,of  a  mine  will  pay  annually  to  the 
Government  two  soils  of  payments — one  fixed  payment  for  each 
donum  of  land  contained  in  the  limits  granted,  and  another 
proportional  to  the  production  of  the  mine. 

Art.  40.  The  fixed  payment  of  a  mine  granted  to  be  worked,  by 
a  Firman,  will  be  five  paras  per  donnm  of  the  superficies  of  the 
grant  according  to  a  horizontal  plan,  the  donum  being  16SO  square 


334  The  Ottoman  Land  Code. 

architectural  archines.  The  fixed  payment  of  mulk  lands  belongs 
to  the  owner,  and  that  of  domanial  and  mevkufe  land  to  the 
Government.  The  value  of  the  land  bought  to  work  the  mine,  as 
well  as  the  indemnities  for  injury,  will  be  paid  by  the  grantees 
conformably  to  the  special  provisions  relative  to  it. 

Art.  43.  The  fixed  payment  for  the  land  of  the  mine  will  be  paid 
during  the  current  year,  but  the  proportional  payment  on  the  gross 
produce  will  be  paid  thefollowing  year  and  at  fixed  periods. 

(&)  As  regards  the  indemnity  for  injuries  which  is  to  be  paid  to 
the  owner,  and  the  purchase  of  ground  by  the  grantee,  the  said 
Regulations  contain  the  following  provisions : — 

Art.  59.  When  the  works  for  the  working  a  mine  are  only 
temporary,  and  if  the  ground  where  they  have  been  made  can  by 
the  end  of  the  year  be  restored  to  the  original  state,  the  indemnity 
shall  be  double  of  what  the  soil  would  have  produced  net  in  the 
year,  and  shall  be  paid  to  the  grantee  or  the  owner  of  the  soil. 

Art.  60.  If  shafts  or  galleries  have  been  made  in  the  land,  or 
permanent  works  for  working  the  mines  have  been  established,  and 
if  the  grantee  could  not  come  to  an  understanding  with  the  owners 
for  the  purchase  of  this  land,  he  will  then  be  required  to  buy  this 
land,  and  to  pay  for  it  at  double  the  value  put  on  it  by  the 
Government. 

(c)  As  regards  the  working  of  substances  comprised  under  the 
name  of  ore  and  specified  in  the  third  article  of  the  Regulations, 
working  made  by  the  owner  in  virtue  of  a  firman  or  by  another, 
see  the  Arts.  75  to  77  of  the  said  Regulations,  (d)  As  regards  the 
right  of  every  proprietor  "  to  make  on  his  property  any  sort  of 
excavations,  having  exclusively  in  view  the  seeking  for  mineral 
substances,  without  being  obliged  to  obtain  for  this  purpose  any 
authorisation  from  the  Government, « and  of  the  right  of  every 
other  to  make  similar  researches  in  virtue  of  a  permission  from 
the  general  Government,  if  the  owner  refuses  his  consent,  compare 
the  Arts.  11-19  of  the  Regulations,  (e)  But  the  quarries,  under 
which  qualification  are  comprised  marbles,  granites,  flints,  pozzuo- 
lana,  sands,  and  other  substances  mentioned  in  Art.  4  of  the 
Regulations,  are  not  subject  to  the  mining  regime  of  the  Regula- 
tions (Arts.  1  and  4).  Consequently  they  are  still  governed  by 
the  provisions  of  the  Law. 

B.  Roman  law.    According  to   the  Roman  laws,  the  right  of 


Notes.  335 

ownership  of  the  soil  extends  to  the  space  above  and  below  the  Ownership 
soil,  as  well  as  over  fossils  which  are  found  below  the  surface  of  the  of 
soil  (Lex  13,  §  1,  Dig.  8,  4 ;  Lex  1  pr.,  14,  15,  Dig.  8,  2).  And  it 
is  for  this  that  things  like  sand,  chalk,  stones,  produced  by  ground, 
as  revenue  are  considered  to  be  fruit,  and  consequently  as  a 
dependence  of  the  soil.  (Lex  77,  Dig.  50,  16 ;  Lex  7,  §§  13,  14, 
Pi-.  24,  3 ;  Lex  9,  §§  2,  3  ;  Lex  13,  §  5,  Dig.  7, 1 ;  Lex  18  pr., 
Dig.  23,  5).  Compare  Windscheid,  'Yandektenrecht,'  §  144,  and 
note  3 ;  §  168  in  fine,  and  note  2 ;  §§  169,  10 ;  §  l8Qn  2-4). 
However,  as  regards  the  legislation  relative  to  the  working  of 
mines  (domanial  as  well  as  private)  exercised  by  the  proprietor 
or  by  a  third  party,  and  to  the  rent  paid  to  the  State  or  even  the 
owner,  compare  Chapter  VI.  of  Book  XI.  of  the  Code,  "  De 
metallariis  et  metallis  et  procuratoribus  metallonim." 

C.  French  law.     Compare  the  law  of  the  21st  April  about  mines. 

167.  Treasure.  A.  Mussulman  law.  According  to  the  com-  Treasure 
mentator  of  the  '  Multeka ' — a  work  in  which  is  set  forth  the  trove- 
Hanefite  doctrine,  and  which  may  be  considered  as  forming  the 
basis  of  the  Mussulman  legislation  of  the  Empire — "  Kikiaz  "  is  a 
collective  word,  meaning  at  the  same  time  the  mines  existing  in 
the  bosom  of  the  earth  (maaden)  and  the  treasures  buried  in  the 
soil  (kinz)  by  men.  If  the  discovered  treasure  bears  an  Islamite 
mark,  it  is  ranked  amongst  objects  lost  and  found  (loqta),  and  in 
this  case  it  is  subjected  only  to  the  relative  dues ;  but  if  it  bears  an 
emblem  of  infidelity,  such  as  the  figure  of  an  idol  or  of  a  cross,  it 
will  be  subjected  to  "  khoums."  Compare  Belin,  §  124,  according 
to  whom  the  different  opinions  of  the  jurisconsults  on  the  rights  of 
the  State  and  of  him  who  has  discovered  the  treasure  are  exposed 
in  the  Fetavi  alern  guiri.  As  regards,  then,  the  regulations  relative 
(a)  to  objects  lost  and  found  (ioqta),  to  which  the  Islamite  treasure 
is  assimilated,  it  is  established  that  no  inanimate  object  found, 
worth  more  than  one  dirhem,  can  be  the  object  of  a  use  or  of  a 
location  without  the  consent  of  its  legitimate  owner  (Tornauw, 
'  Droit  Mussulman, '  page  282).'  Sometimes,  however, "  Whatever  is 
found  in  the  desert,  or  buried  in  the  earth,  or  in  the  intestines  of 
animals,  or  in  the  bosom  of  waters,  without  its  being  possible 
to  know  the  owner,  become  the  entire  property  of  the  finder "  (eod., 
page  283).  (6)  As  for  the  khums,  to  which  the  non-Islamite  treasure 
is  subjected,  the  same  author  says  that  "  khums  "  literally  means 


336  The  Ottoman  Land  Code. 

"  the  fifth  part,"  which,  in  the  cases  laid  down  by  the  law,  the  Mussul- 
mans must  allow  to  be  deducted  as  tax  from  their  patrimony  (Eod., 
pages  61,  62).  B.  Roman  law.  According  to  the  definition  of  the 
Law  31,  §  1,  Dig.  41,  1.  "  Thesaurus  est  vetns  qujedam  deposit io 
pecunia?,  cujus  non  extat  memoria,  ut  jam  dominum  non  habeat," 
the  treasure  belongs  half  to  him  who  has  discovered  it,  and  the 
other  half  to  the  owner  of  the  ground,  or  to  the  State  if  it  be  found 
in  sacred  or  religious  ground.  If  it  be  found  in  another's  ground 
after  researches  without  his  consent,  it  belongs  entirely  to  the 
proprietor  (compare  §  39,  Inst.  2, 1,  Lex  unica,  Cod.  10, 15  ;  Lex  3, 
§§  10, 11,  Dig.  49-14).  C.  French  law.  According  to  the  definition 
of  the  Art.  716  of  the  Civil  Code  (in  fine) :  "  The  treasure  is  anything 
concealed  or  buried  of  which  no  one  can  pretend  to  be  the  owner, 
and  which  is  discovered  by  chance.  Thus  the  property  of  a 
treasure  belongs  to  him  who  has  found  it  in  his  own  ground  ;  if  the 
treasure  be  found  in  the  grounds  of  another,  it  belongs  "  the  half 
to  him  who  has  discovered  it,  and  the  other  half  to  the  owner  of 
the  land"  (see  the  same  article).  As  regards  objects  lost,  see 
Art.  717  of  the  same  Code. 

Forfeiture        168.    Unworthiness    to   inherit — murder.     A.  Mussulman   law. 

by  crim-  rp]je  Mussulmans  recognise  three  causes  of  absolute  incapacity  to 
inherit :  (1)  The  state  of  servitude ;  (2)  the  murder  of  the  deceased, 
committed  by  the  heir;  and,  as  regards  domanial  lands  or 
mevkufe,  the  Ottoman  Code  has  added :  (3)  the  difference  of 
nationality,  (a)  As  regards  the  servitude,  see  Art.  112  and  note 
172 ;  and  with  respect  to  the  difference  ol  religion,  see  Art.  109  and 
note  169.  As  regards  the  difference  of  nationality,  see  Art.  110 
and  note  170.  With  respect  to  murder :  "  He  who  voluntarily 
has  killed  another  cannot  inherit  from  him.  An  involuntary 
homicide  by  imprudence  or  awkwardrfess  does  not  render  unworthy 
of  inheriting;  but  the  absence  of  criminal  intention  must  be 
entire  "  (Tornauw,  '  Droit  Mussulman,'  page  256). .  It  is  thus  the 
minor  murderer  who,  according  to  the  doctrine  malekite,  is  in  a 
state  of  impuberty,  is  not  considered  as  unworthy  of  inheriting, 
for  every  homicide  committed  intentionally  by  a  minor  is  always 
considered  as  involuntary  (Solvet,  'Successions  Mussuimanes,'  page 
8).  However,  as  regards  the  imputability  of  minors,  according  to 
the  penal  Ottoman  law,  compare  Art.  40  of  the  Penal  Code,  and 
with  respect  to  murder  in  general,  Arts.  168,  175,  182  of  the  same 


Notes.  337 

Code.  But,  according  to  other  sects,  "Homicide  prevents  Kbifeiture 
inheritance,  whether  committed  intentionally  or  involuntarily  or  crune' 
(El-Khazin,  cited  by  Solvet,  'Sue  d.,'  page  7,  note). 

B.  Roman  law.  He  who,  intentionally  or  involuntarily — that  is, 
by  negligence  (per  negligentiam  et  culpam  suam) — has  caused  the 
death  of  the  deceased  (id  egisse,  ut  moreretur)  is  considered  as 
unworthy  to  inherit,  and  as  such  excluded  from  the  inheritance  or 
the  acquisition  of  the  thing  bequeathed  by  the  deceased  to  the 
murderer,  which  falls  to  the  fisc ;  that  is,  the  State.'  Compare  Lex 
3,  Dig.  34,  9  ;  Lex  10,  Cod.  6,  35 ;  Lex  7,  §  4,  Dig.  48,  20 ;  Lex  '.», 
Dig.  49,  14.  It  is  the  same  for  the  heir  who  does  not  revenge  the 
murder  of  the  deceased  by  a  judicial  prosecution,  or  by  the  neglect 
of  whom  the  legal  pursuit  has  ceased  (Lex  21,  17,  Dig.  34,  9; 
Lex  8,  §  1 ;  Lex  15,  22,  Dig.  29,  5  ;  Lex  1,  7,  9,  Cod.  6,  35),  unless 
the  heir  be  a  minor  (Lex  6,  Cod.  6,  35).  However,  the  provisions 
relative  to  this  last  unworthiness  are  considered  in  countries  where 
Eoman  law  is  still  in  force  by  the  one  party  as  inapplicable  to-day 
from  moral  motives  (Sinteuis,  *  Das  practische  Civilrecht,'  §  205, 
note  9) ;  by  the  others,  on  the  contrary,  as  applicable  (Muehlen- 
bruch  in  the  continuation  of  the  *  Pandekten '  of  Glueck,  voL 
xliii.,  page  477).  With  respect  to  other  cases  of  unworthiness, 
compare  Dig.  34,  9,  "  de  his  quse  ut  indignis  auferuntur,"  and  Code 
6,  35,  "  de  his  quibus  ut  indignis  hereditates  auferuntur,"  Nov.  115, 
chap.  3,  §§  13  and  15  ;  chap.  4,  §  6,  &c.,  &c.  Compare  in  this 
respect  Windscheid,  'Pandektenrecht,'  §§  669-674.  C.  French  law. 
Those  unworthy  of  inheriting,  and  as  such  excluded  from  in- 
heritances :  (1)  He  who  has  been  condemned  for  having  caused 
the  death,  or  tried  to  cause  the  death  of  the  deceased;  (2)  he 
who  has  brought  against  the  deceased  a  capital  accusation  judged 
to  be  calumnious ;  (3)  the  rTeir,  not  a  minor,  who,  informed  of  the 
murder  of  the  deceased,  has  not  given  notice  to  the  officers  of  justice 
(Art.  727  of  the  Civil  Code.  Compare  also  Arts.  728-730).  As 
regards  the  incapacity  of  hirn  who  is  civilly  dead  (Art.  725,  §  3  of 
the  Civil  Code),  it  is  known  that  civil  death,  which  is  the  con- 
sequence of  a  penal  condemnation,  established  by  Arts.  22,  23  of  the 
Civil  Code,  is  abolished  by  the  law  of  the  31st  May,  1854,  of 
which  the  provisions  have  taken  the  place  of  the  Articles 
mentioned  (22,  23  of  the  Code),  and  according  to  which  only  the 
condemned  to  perpetual  "afflictive"  pun.shment  (see  Arts.  28-30 

Z 


338 


The  Ottoman  Land  Code. 


Religious 
disability. 


Racial 
disability. 


of  the  French  Penal  Code)  may  not  dispose  of  his  property  wholly 
or  in  part,  either  by  gift  to  living  persons  or  by  will,  nor  receive 
on  tliis  ground,  except  it  be  for  food,  &c.  (Art.  3  of  the  saidlaw). 
However,  compare  also  Art.  31,  §  2,  of  the  Ottoman  Penal  Code. 

169.  Incapacity  to  inherit — difference  of  religion.      A.  Mussul- 
man l\w.     An  unbeliever,  however  near  relation  he  may  be  of  a 
Mussulman,  cannot  inherit  frpm  him  ;  if  the  son  of  a  Mussulman  is 
an  unbeliever,  and  the  grandson  a  Mussulman,  this  one  inherits 
bis  grandfather"  (Tornauw,  *  Droit  Mussulman,'  pages  254,  255).    A 
Mussulman,  on  the  contrary,  takes  of  the  inheritance  of  an  un- 
believer the  portion  which  falls  to  him  by  law.     But  with  the 
Sliafiites  and  the  Azemites  a  Mussulman  no  more  inherits  from  an 
unbeliever  than  the  unbeliever  does  from  a  Mussulman  (eod.)  that 
which  the   Ottoman  law  has  also  reserved  respecting    land.     B. 
Roman  law.     The  apostates  and  some  of  the  heretics  have  been 
declared  incapable  of  inheriting  :  "ipsos  quoque(that  is,  Manichaeos 
vel  Donatistas)  volumus  amoveri  ab  omni  liberalitate  et  successione, 
quolibet  titulo  veniente"  (Lex  4,  Cod.  1,  5).     Compare  also,   as 
regards  the  other  heretics,  "  Ariaui  et  Macedonian!,  Pneumatoma- 
chi,"  &c.,  the  Law  5  (eod.),  and,  as  regards  apostates,  the  Law  3, 
Cod.  1,  7. 

170.  Incapacity  of  inheriting — difference  of   nationality.     A. 
Mussulman  law.     Infidels  do  not  inherit  each  other  respectively, 
unless  they  live  in  the  same  country.    Mussulmans,  on  the  contrary, 
inherit  one  from  the  other,  no  matter  whether  they  be  or   not 
subjects  of  the  same  state.     But  the  Shiites  in  no  case  regard  the 
difference  of  nationality  as  a  hindrance  to  inheriting  (Tornauw, 
'  Droit  Mussulman,'  pages  255,  256).     B.  Ottoman  law.     The  Code 
has  established  the  inability  of  the  foreigner  to  inherit  the  land  of 
an  Ottoman  subject.     But  by  a  later  law  it  has  been  granted  to 
foreigners  whose  Government  has  .adhered  to  the  Protocol  ad  hoc 
the   right   of    holding    immovable    property.     Consequently,  the 
question  presents  itself  to  know  whether  the  inability  in  virtue  of 
the  Code  can  still  be  applicable  to  the  said  foreigners  who  profess 
the  same  Mussulman  religion  as  the  deceased,  or  to  foreigners  who 
profess  the  same  religion  or  a  different  religion,  not  Mussulman, 
as  regards   the  deceased.      The   said  law    says  nothing   in   this    ' 
respect.     From  the  comparison  of  Art.  2,  §  1,  and  Art.  4,  with  the  / 
said  Protocol,  it  does  not  result,  either  absolutely  or  necessarily, 


Notes.  339 


that  'he  inability  must  be  considered  still  to  be    in  force  (see  law  Racial 

No.  13,  and  the  Protocol,  Leg.  Ott.  Vol.  I.  No.  S,  p:ig.<  22).     As  *\lit7 

the  inability   established  by  the  Law  was  not  established  as  an 

.ssultnan  law,  but  rather  as  a  consequence 

of  the  principle  that  foreigners  in  general  could  not  have  a  right 
to  hold  property  on  Ottoman  territory,  it  appears  that  Art.  110  of 
!\v  has  been  modified  as  regards  the  said  foreigners,  Mussul- 
mans or  not.  C.  Roman  law.  According  to  the  legislation  previous 
to  that  of  Justinian,  any  person  who  has  not  the  right  of  contracting, 
according  to  the  rules  of  the  Roman  Civil  Law,  the  "commercium 
juris  civilis,"  but  only  according  to  those,  of  jus  gentium,  were 
considered  incapable  of  inheriting,  whether  by  will  or  intestate, 
and  amongst  those  persons  were  also  the  peregrini ;  that  is,  the 
foreigners  (compare  Ulpian,  xxii.,  2  Lex,  Cod.  7,  2).  D.  French 
law.  The  provision  of  Art.  726  of  the  Civil  Code,  according  to 
which  strangers  had  not  the  right  of  inheritance  of  property 
situated  in  France  but  on  condition  of  reciprocity  between  states, 
has  been  abolished.  In  consequence  foreigners  have  the  right  to 
inherit  in  the  same  manner  as  the  French.  Compare  Art.  1  of  the 
law  of  1-ith  July,  1819.  Nevertheless,  in  the  case  of  the  division 
of  an  inheritance  between  joint  heirs,  foreigners  and  French,  the 
latter  will  deduct  from  the  property  situated  in  France  a  portion 
equal  to  the  value  of  the  property  situated  in  a  foreign  country  from 
which  they  would  be  excluded  on  any  grounds,  in  virtue  of  the 
laws  and  local  customs  (Art.  2  of  the  said  law).  E.  German 
law. — According  to  §  3  of  the  Constitution  of  the  German 
Empire,  the  subjects  of  a  confederate  state  are  in  another  con- 
federate state  considered  as  indigenous  of  that  state.  In  conse- 
quence they  cannot  be  excluded  from  an  inheritance  as  foreigners 
when  that  state  establishes  perhaps  the  incapacity  of  foreigners. 
Compare  also  §  39  of  the  law  of  the  21st  June,  1869,  concerning 
the  guarantee  of  legal  assistance.  As  for  the  question  to  know 
whether  the  right  of  foreigners  to  inherit  as  regards  landed 
property  in  the  various  States  is  to  be  decided  by  the  law  as  to 
persons,  or  by  the  real  law,  compare  Foelix,  *  Droit  Internat.,'  private, 
§  56  suiv.,  and  esp.  60 ;  Bar,  « International  Privat-und  Staatrecht,' 
page  376. 

171.  Abandonment  of  the  Ottoman  nationality.     The  Ottoman 
subject  who  has  acquired  a  foreign  nationality  with  the  authorisation 

2   2 


34O  The  Ottoman  Land  Code.  , 

< 

Loss  of  old  of  the  Government  is  considered  and  treated  as  a  foreign  subject 

'  nationality  (Art.  5  of  the  law  about  Ottoman  nationality,  Leg.  Ott.  Vol.  I.  p.  8). 

|>y  acquisi-  jn  this  case  tne  cnange  Of  nationality  does  not  show  that  it  can 

produce  the  confiscation  established  in  Art.  Ill  as  a  consequence  of 

the  abandonment  of  the  Ottoman  nationality.     But  in  the  case  of 

naturalisation  in  a  foreign  country  without  previous  authorisation, 

it  will  be  null  and  void.     However,  the  Government  can  declare 

the  loss  of  the  quality  of  Ottoman  subject  (see  Arts.  5  and  6  of 

the  said  law).     After  such  a  declaration,  confiscation  is  an  immediate 

consequence.     Mussulman    law.     The  "inheritance    of   him   who 

abandons  Islamism,  M\irtad,  enures  for  the  benefit  of  the  believing 

heirs,  and  on  failure  of  this,  for  the  benefit  of  the  Imam  or,  according 

to  the  Shafiites,  of  the  Beit-el-Mal.     (Compare  Tornauw,  '  Droit 

Mussulman,'  page  255.) 

Lecral  posi-  172.  Slavery.  A.  Mussulman  law.  There  are  in  a  state  of 
tion  of  slavery  only  infidels  made  prisoners  of  war,  so  that  the  Christians, 
the  Jews,  and  the  pagans  even,  who  inhabit  Mahometan  countries 
and  who  pay  their  capitation  'jezieY  cannot  be  reduced  to  the 
state  of  slavery.  Nevertheless,  it  is  actually  in  general  use  to 
have  in  almost  all  Mahometan  countries  black  slaves  who  have  not 
been  made  prisoners  of  war,  but  who  have  been  reduced  to  this 
state  by  cunning  and  violence.  And  it  is  thus  that,  contrary  to 
the  fundamental  principles  of  Islamism,  children  and  adults  of  free 
condition  are  sold  as  slaves.  These  acts  on  the  part  of  Mussulmans 
remain,  however  illegal,  and  cannot  be  protected  by  law.  Property 
in  slaves,  besides  the  direct  acquisition  by  captivity  in.  war,  can  be 
acquired  in  three  ways  :  by  sale,  by  gift,  and  by  inheritance;  and  it 
is  a  rule,  as  regards  the  sale,  that  the  slaves  may  be  sold  in  families 
or  separately  (Tornauw,  '  Droit  Mussulman,'  pages  222,  223).  As 
regards  the  liberation,  and  especially  (1)  voluntary  liberation  by 
the  master,  compare  eod.,  chap,  ii.,  page  225 ;  (2)  the  legal  liberation, 
page  227  ;  (3)  liberation  by  the  act  of  the  last  will,  page  228.  As 
regards  the  "  ransom  of  the  slave,"  compare  chap,  v.,  page  229 ; 
invention  of  a  fugitive,  page  231 ;  connection  and '  procreation  of 
children  with  a  female  slave,  page  231.  The  slave  cannot  inherit 
from  a  free  man,  nor  vice- versa  (see  page  256).  He  is  deprived  of 
the  administration  of  his  property,  if  he  have  any,  because  it  is 
the  master  who  is  the  manager  of  it  (page  206).  B.  Ottoman  law. 


Notes.  341 

• 

(1)  With  regard  to  the  land  purchased  by  {permission  of  the  master,  £egal  posi- 
the  Ottoman  law,  on  the  contrary,  prohibits  any  interference  of  the  t'on  ot 
master  or  his  heirs.  (2)  It  is  unnecessary  to  say  that  to-day  the 
principles  of  right  of  Mussulman  war,  according  to  which  prisoners 
of  war  were  made  slaves — principles  quite  opposed  to  the  dispositions 
of  modern  international  law — being  no  longer  in  force,  the  direct 
acquisition  by  captivity  of  war  can* no  longer  take  place.  (3)  As 
regards  the  sale  of  free  negroes,  abusively  made/  by  certain  in- 
dividuals, the  authors  of  these  abuses  are  prosecuted  by  the 
authorities.  As  regards,  then,  the  prohibitive  measures  for  the  sale 
of  slaves,  compare  the  first  section  of  public  law  ;  that  is,  the  droit  • 
politique.  C.  Roman  law.  It  is  kno\yn  that  in  the  Roman 
legislation  the  slave  was  considered  as  a  res ;  that  is,  a  thing  with- 
out any  personality ;  the  master  had  over  him  a  right  of  full 
property,  and  whatever  was  acquired  by  the  slave  became  by 
perfect  right  the  property  of  his  master.  He  could  not  purchase 
by  agreement ;  only  he  was  allowed  the  management  of  the 
separate  estate  (peculia),  of  which,  however,  the  ownership  be- 
longed to  the  master.  As  not  having  the  commercium  juris  civilis 
(see  note  170  c),  the  slave  was  incapable  of  inheriting  himself ;  if 
then  a  servus  alienus  was  appointed  heir,  the  inheritance  fell  to  the 
master.  Compare  Lex  53,  Dig.  5,  1  ;  Lex  5,  Dig.  53,  40 ;  §§  3,  4, 
Inst.,  2,  9 ;  Dig.  15,  1 ;  Ulpian,  xx.  26 ;  Gaius,  ii.  185-190  ;  Inst. 
pr.,  2,  14.  And  see  Thibaut,  '  Geschichte  und  Institutionen  des 
Romischen  Rechtes,'  §§117-118,  245. 

173.  Invalidity  of  the  sale  by  reason  of  violence.     A.  Ottoman  Alienation 
law.     The  disposition  of  the  law  is  similar  to  Roman  law,  according  Sot  b7 
to  which  the  actio  quod  metus  causa  is  an  action  in  rem  scripta.     It  °rce'   '°' 
is  thus  that  the  seller  or  his  heirs  (the  direct  as  well  as  the  collaterals, 
note  100)  will  have  the  rigfet  of  revindication  against  every  holder 
of  the  land.      In  the  same  way  as  it  results  from  the  provisions  of 
the  article  in  fine,  the  sale*  is  not  void  by  full  right,  but  it  may  be 
impeached,  in  conformity  also  with  the  French  Civil  Code  (Arts.  1117 
and  1304),  and  with  the  dominant  doctrine  to-day  in  Germany  as 
regards  the  meaning  of  the  Roman  laws.     B.  Roman  law.     Compare 
Dig.  4,  2,  quod  metus  causa  gestum  erit ;  Cod.  2,  20,  de  his  quae 
vi  metusve   causa  gesta  sunt.     C.  French   law.     Compare  Arts. 
1112-1115,  1117,  and  1304. 


342  The  Ottoman  Land  Code. 

<^ 

'Sale  under*-  174.  Nullity  of  alienation  made  with  conditions  considered  illegal 
illegal  con-  According  to  Mussulman  law,  a  gift  between  relations  is  a  contract 
void  of  the  class  irrevocable ;  and  consequently  it  requires,  to  make  it  or 

to  cancel  it,  the  reciprocal  consent  of  the  parties.  Thus  it  is  settled, 
that  it  is  not  allowed,  when  the  gift  is  an  irrevocable  contract,  to 
make  it  with  conditions  or  for  a  term  (Tornauw, '  Droit  Mussulman,' 
pages  182,  183).  Probably  the'-  law  makes  allusion  to  this  rule  of 
common  law  in  the  dispositions  indicative  of  the  article  in 
question  ;  see,  however,  Arts.  38,  39  and  notes  77,  78.  As  to  the 
conditions  considered  iMegal  in  a  sale,  any  work  on  Mussulman  law 
may  be  consulted. 

175.  Forced  sale  of  domanial  lands.  The  provisions  of  Art.  115 
have  been  modified,  in  the  first  place :  (1)  in  favour  of  the  State, 
by  the  law  "on  the  forced  sale  of  Mirie  lands  (domanial)  held  by 
debtors  to  the  State,"  dated  7.  Rebiul  ewel,  1279,  and  afterwards 
they  have  been  totally  abolished ;  (2)  in  favour  of  creditors  of  every 
sort  by  the  law  on  the  forced  sale  of  lands  Mirie,  and  of  land  Vakf 
called  Musakafat  and  Musteghillat  for  the  payment  of  debts  of  the 
holder,  dated  18.  Shaban,  1288.  The  entire  text  of  these  laws  is 
given  in  Nos.  7,  15,  and  22.  It  is  well  understood  that  by  the 
forced  alienation  established  by  the  said  law  in  favour  of  every 
creditor,  the  provisions  of  the  Land  Law  relative  to  the  permission 
of  the  authority  in  the  case  of  voluntary  sale  has  lost  its  previous 
importance. 

Conditional  176.  Sale  with  faculty  to  repurchase.  Conditional  and  hypothe- 
sale,  &c.,  cat  ing  alienation,  or  firagh  bil  vefa  (Arts.  116-118).  The  provisions 
of  Arts.  116-118  have  been  in  part  modified,  in  part  abolished,  and 
in  part  completed  (1)  by  the  Arts.  25-30  of  the  Tapu  Law  ;  (2)  by 
the  law  about  the  forced  sale  of  land!'  Mirie  and  Mevkufe  mort- 
gaged for  the  payment  of  the  debt  in  case  of  the  decease  of  the 
debtor,  dated  23.  Eamazan,  1286  (see  'No.  15) ;  and  (3)  by  the 
law  on  the  hypothecation  of  property,  dated  21.  Eebiul  achir,  1287 
(No.  16). 

A.  Formality  extrinsic  (of  the  conditional  and  hypothecating 
alienation ;  that  is,  of  the  legal  act  "  firagh  bil  vefa,"  alienation  until 
payment).  The  Art.  116  has  been  completed  by  the  Arts.  26,  30 
and  the  supplementary  Art.  of  the  Tapu  Law  (see  again  Art.  1  of 


Notes.  343 


the  law  of  the  forced  sale  of  hypothecated  property) ;  compare, 
however,  the  said  law  "  on  Hypothecations  in  general." 

B.  Conditions  and  procedure.     As  regards  the  procedure  to  be  Conditional 
followed  for  a  forced  sale  :  (1)  during  the  life  of  the  debtor,  the  «* 

Art.  117  has  been  completed  by  the  Art.  27  of  the  Tapu  Law: 
(2)  after  the  decease  of  the  debtor,  the  Art.  118  has  been  modified 
by  the  Arts.  28  and  29  of  the  same  Law,  but  the  provisions  of 
these  articles  have  afterwards  also  been  essentially  modified  by 
the  law  on  the  forced  sale  of  hypothecated  property,  see  Arts.  2, 
4,  and  pr.  of  the  law. 

C.  Mortgage  in  general.     As  to   the  formalities  and  conditions 
of  the  mortgage   of  landed  property  other  than   lands  Mirie,  see 
the  said  Uw  on  the  mortgage  of  land.     As  regards  the  institution 
sui  generis  of  "  firagh  bil  vefa,"  which,  from  a  certain  point  of  view, 
may  be  considered  as  a  sort  of  voluntary  and  singular  transfer  of 
property  made    by  the   debtor  to   his   creditor    "  cessio  bonorum 
voluntaria  et  singularis,"  compare  Dig.  43,  2  Cod.  7,  71,  and  Arts. 
1265-1270  of  the  French   Civil  Code,  and   which,  from  another 
point  of  view,  on  account  of  the  modifications  made,  is  become  an 
institution  almost  hypothecating.      Compare  D'Ohsson,  '  Tableau 
de  1'Empire  Ott.' .(vol.  vi.,  page  73). 

177.  This  act  of  procuration  made  before  the  kadi  is  designated  Trustee  foi 
by  the  expression  "  Hudjeti  vekialeti  devrie  "  (compare  Belin,  who  sale- 
mentions  a  document  of  this  sort,  page  239  ). 

178.  See    note   176,  on  the   modifications  made   in  the  Arts. 
116-118. 

179.  See  also  note  176. 

180.  Actio  doli  (between    seller  and  buyer).     A.  Mussulman  Sale  got 
law.     The  contract  of  sal?  forming  part  of  the  irrevocable  contracts  by  fraud 
cannot  be  revoked  but  by^the  mutual  consent  of  the  contractors.  V01  ' 
But  it  may  be  attacked  on  account  of  discovered  fraud  (chior  ghebn). 
When  in  the  sale  of  the  thing  the  seller  has  made  use  of  deceit  and 

fraud,  the  buyer  has  the  right  of  cancelling  his  engagement  as  soon 
as  he  discovers  the  employment  of  these  means  (Tornauw,  '  Droit 
Mussulman,'  page  129).  B.  Ottoman  law.  The  text  of  the  Art. 
119  says,  "  Tagrif  ve  gabni  fahish,"  which,  according  to 
the  Greek  translator,  signifies  the  fraud  of  the  seller  who  has 
represented  the  object  of  the  sale  as  having  qualities  which 


344  The  Ottoman  Land  Code. 

Sale  tainted  it  had  not,  or  who  has  sold  the  object  at  a  price  above  its  real 

'iViyoidiaU(i  Value  ^ The  Ottoman  Codes>'  by  Nicolaides,  page  459,  note  1). 
It  is  for  this  that  in  the  note  78,  page  86,  it  is  said  that  the  sale 
can  be  cancelled  on  account  of  deceit  or  fraud  regarding  faults 
justifying  annulling  the  sale.  2.  According  to  the  Tapu  Law 
(Art.  24),  any  difference  on  account  of  deceit  or  fraud,  as  well  as 
any  other  suit  concerning  domanial  land,  which  are  decided  by 
religious  law,  are  to  be  heard  in  presence  of  the  administrative 
functionaries  of  'the  Finance  who  represent  the  owner  of  the  land 
(see  note  130,  §  2,  and  Art.  1  of  the  said  Law).  In  the  same  way 
.  in  suits  relative  to  mortgages  (see  Art.  30  of  the  same  Law). 
This  functionary  may,  then,  be  considered  as  a  sort  of  Public 
Ministry  who  protects  the  rights  of  the  State  (compare  by  analogy 
Art.  83,  §§  1,  84,  and  112  of  the  Civil  French  Code  of  Procedure). 
C.  Roman  law.  As  regards  the  sense  of  dolus  as  a  fact,  meaning 
the  nullity  of  an  agreement  in  general,  compare  Lex  1,  §  2,  Dig. 
4,  3  ;  Lex  7,  §  9,  Dig.  2,  14 ;  Lex  43,  §  2,  Dig.  18,  1.  As  regards 
the  fraudulent  sale  of  a  piece  of  land:  "If  the  buyer  has  been 
deceived  as  to  the  quality  of  the  acres  of  land  sold,  he  has  the 
action  of  the  purchase"  (Lex  34,  Dig.  19,  1).  D.  French  law. 
(Compare  Arts.  1109,  1116,  1117,  1304,  and  1658  of  the  Civi  1 
Code.) 

181.  Alienation  and  donatio  mortis  causa.  A.  Mussulman 
law.  When  the  giver  makes  a  contract  of  gift  during  an  illness, 
this  act  preserves  all  its  validity  after  recovery ;  but  if  the  giver  die 
from  the  disease  during  the  existence  of  which  he  has  consented  to 
the  contract,  the  heirs  have  the  right  to  keep  at  least  two-thirds  of 
the  inheritance  and  to  leave  to  the  donee  at  the  most  one-third  " 
(Tornauw, '  Droit  Mussulman,'  p.  183).  B.  Ottoman  law.  (1)  The 
Code  treating  in  general  of  alienation  iportis  causa  does  not  give 
anything  in  this  respect  in  favour  of  the  heirs,  as  the  common  law 
of  the  Mussulmans  does.  (2)  As  for  gif^s  between  living  persons, 
see  Arts.  36,  38-39,  notes  71  and  78.  (3)  As  regards  gifts  of 
domanial  land  made  by  foreign  subjects  possessing  the  right  to 
hold  landed  property,  compare  the  law  granting  to  foreigners  the 
right  of  property,  Arts.  4-5  (No.  13).  C.  Roman  law.  Com- 
pare Dig.  39,  6,  de  mortis  causa  donationibus,  and  Cod.  8,  57,  de 
donationibus  causa  mortis.  Amongst  the  various  kinds  of  gifts 


Notes.  345 


on  account  of  death,  only  that  which  is  made  "  cum  quis  immi-  Donatio 
nenie  periculo  coinmotns  <loiuvtv  (Lex  2,  Dig.  eod.),  ti  at  is  donation  mortis 
on  account  of  imminent  danger,  corresponds  exactly  to  the  Art.  causa- 
120,  which   requires   a   state   of  mortal  illness.     D.  French  law. 
Compare  the  provisions  relative  to  testaments,  by  which  alone  is 
gratuitously  made  every  disposal  of  the  property  of  a  person  for 
the   time   he  will  no  longer  exist.     See  Arts.  893,  895,  907  and 
following  ol  the  Civil  Code. 

182.  According  to  Mussulman  law,  one  can  consecrate  only  things  Only  full 
over  which  he  who  consecrates  has  an  incontestable  right  of  property  owner  can 
(Tornauw,  '  Droit  Mussulman,'  p.  196).     The  holder  of  a  domanial  ^°ate 
estate  not  having  then  a   right   of  property  over  it,  must   first 
acquire  by  sovereign  patent  the   full   ownership   of  the  land  he 

wishes  to  consecrate. 

183.  Ecclesiastical   property.      A.   Canonical   law.      There   are  Land  held 
two  categories  of  objects  belonging  to  a  church  : — (1.)  Those  which  to  religious 
are  immediately  destined  for  worship  (for  example,  the  church)  and  uses- 
consecrated  with  particular  solemnity;  that  is,  the  sacred  objects 

(res  same)  which,  according  to  their  solemnisation,  are  either  res 
consecrate  or  res  benedictaj.  To  these  sacred  objects  the  laws  of 
property  are  inapplicable,  because  they  are  res  extra  commercium  ; 
their  dishonour  is  prohibited  under  penalty  even  by  political  law. 
(2.)  The  other  things  of  the  church  have  not  such  a  destination  for 
the  divine  service,  but  they  are  destined  only  for  the  external 
wants  of  the  church.  They  are  in  part  assimilated  to  the  secular 
property,  with  the  difference  only  that  they  are  subjected  to  a 
particular  superintendence,  and  their  alienation  is  difficult.  They 
are  called  ecclesiastical  prop'erty  in  a  particular  sense,  "  res  ecclesi- 
astics in  specie,  patrimonium  aut  peculium  ecclesire."  This 
distinction  is  also  observed  by  the  Protestants.  The  alienation  of 
property  of  the  la.>t  category  is  also  permitted  only  from  imperious 
necessity.  (Compare  Walter,  '  Kirchenrecht,'  §  267,  edit.  14,  by 
Gerlach,  1871.) 

As  regards  the  exceptional  cases,  in  which  an  ecclesiastical  landed 
property  can  be  alienated  according  to  canonical  law,  it  is  established 
in  ecclesiastical  law  that  only  for  legal  motives  and  after  certain 
formalities  can  the  alienation  be  allowed.  (1.)  Legal  motives  are 


346  The  Ottoman  Land  Code. 

r 

t.  considered,  as  such,  an  absolute  necessity,  as  payment  of  ecclesins- 
tical  debts,  ransom  of  prisoners  of  war,  maintenance  of  the  poor 
during  a  time  of  famine,  for  which  cases  even  the  res  consecrate 
are  alienable ;  or  an  evident  advantage  which  is  realised  for  the 
Formality  church  by  such  an  alienation.  (2.)  Formality.— The  bishop  cannot 
of  sale.  grant  the  permission  for  alienation  until  after  hearing  the  parties 
interested  in  this  respect,  and^  after  having  received  the  assent  of 
the  ecclesiastical  council  of  the  diocese  (synodus  dicecesana),  in 
the  direction  of  which  it  is  considered  as  an  episcopal  se 
With  the  Protestants  in  Germany  the  consistory  or  the  sovereign 
carries  out  the  duties'of  the  bishop  with  regard  to  this*'  Compare 
(a.)  As  regards  necessity:  c.  70,  c.  xii.  g.  2  (Ambros.  a,  377); 
c.  50,  c.  xii.  g.  2  (Concil.  Garth,  vi.,  a,  419);  c.  21,  c.  de  §§ 
eccles.  (1,  2) ;  Nov.  120,  c.  9,  10,  c.  14,  16,  c.  xii.  g.  2  (Greg.  1, 
a,  597) ;  c.  15,  eod.  (Idem,  a,  598) ;  c.  13,  eod.  (Goncil.  Constant. 
iv.  a,  869).  (6.)  As  regards  the  advantage :  c.  52,  c.  xii.  g.  2  (Leo, 
1,  a,  447) ;  c.  20,  eod.  (Symmach.  a,  502) ;  c.  1,  de  reb.  eccl.  non 
alienandis  in  vi.  (3,  9).  (c.)  Consent  of  the  council  eccl. :  c.  51, 
c.  xii.  g.  2  (Concil.  Agath.  506) ;  c.  1,  3, 8,  x.  (3, 10)  ;  c.  2,  x.  (3,  24)  ; 
c.  2,  de  reb.  eccl.  non  al.  in  vi.  (3,  9).  See  Walter,  eod.  §  253,  and 
uotes  2,  3,  and  5.  For  those  who  wish  to  consult  this  work, 
we  remind  them  that  it  has  been  translated  into  Italian  and 
Spanish ;  there  is  also  a  translation  of  the  8th  edition  in  French,  by 
Eougemont,  with  the  title  '  Manuel  du  Droit  ecclesiastique  de  toutes 
les  Confessions  Chretiennes,'  1841.  It  seems  that  the  new  French 
translation  which  the  author  had  promised  in  his  13th  edition  has 
not  been  published. 

B.  Civil  law,  Ottoman.  Like  the  landed  property  of  the 
political  communes,  in  the  same  manner  the  landed  property  of 
the  ecclesiastical  communes — that  is*  those  which  belong  to  a 
church  or  monastery,  and  which  are  inscribed  in  the  Registers  of 
the  Imperial  Archives — are  subject  to  the  same  dispositions  as 
regards  their  inalienability.  As  is  seen,,  the  political  Ottoman  law, 
as  regards  land,  establishes  an  absolute  prohibition  of  the  alienation 
of  a  property  registered  in  the  Imperial  Archives,  whilst  according 
to  the  ecclesiastical  canons  the  alienation  can  take  place  at  least  ex- 
ceptionally. It  is  quite  natural  that  an  alienation  of  landed  property 
without  an  Imperial  authorisation  does  not  seem  to  be  able  to  have 
any  effect  as  regards  the  political  law,  although  the  alienation  be 


Notes.  347 


conformable  to  the  ecclesiastical  laws.    As  to  the  ]>olitical  guarantee,     .^ 
to  the  administration  of  the  property  in  question,  as  wi-11  as  lor  all 
that  is  relative  to  it,  compare  the  chapter,  '  Droit  public  eccle'sias- 
tique,'  classed  in  Leg.  Ott.  Vol.  II.  '  Droit  public.' 

184.  Land  formed  after  the  retreat  of  the  water  of  a  lake  or  of  a  Reclaimed 
river.     A.  Roman  law.     According  to  the  Roman  laws  an  island  lands, 
which  forms  itself  in  a  public  river'becomes  the  property  of  the 
bordering  proprietors  ;  a  line  drawn  in  the  middle  of  the  river  forms 

the  limit  of  their  domination  (§  22,  Inst.  2.  1 ;  Lex  7,  §§  3,  4  ;  Lex 
29,  30  pr.,  §.-2  ;  Lex  56  pr.,  65,  §§  2,  3,  Dig.  4?,  1 ;  Lex  1,  §  6,  Dig, 
43,  12).  It  is  the  same  if,  by  the  abandonment  of  the  bed  of  a 
public  river,  new  land  has  been  formed  (§§  23,  24,  Inst.  eod. ;  Lex  7, 
§§  5, 6;  Lex  30,  §§  1,  3 ;  Lex  38,  56,  §  1,  Dig.  41,  1)  ;  otherwise,  in 
private  waters  as  well  as  in  lakes,  compare  Windscheid,  '  Pandekten- 
recht,'  §  185,  notes  1-2.  As  regards  new  land  formed  by  the 
alluvion,  that  becomes  the  property  of  him  from  whose  land  the 
alluvion  has  taken  place  (§  20,  Inst.  eod. ;  Lex  7,  §  1 ;  Lex  56  pr.,  Dig. 
eod. ;  and  the  same  author,  eod.  note  3).  See  also  the  above  note  124, 
of  which  the  laws  there  indicated  must  be  corrected  as  follows  :  Lex 
7,  §  6,  Dig.  41,  1 ;  and  Lex  30,  §  3,  eod.  B.  French  law.  The 
islands  and  banks  wrhich  form  themselves  in  the  beds  of  streams  or 
navigable  rivers  belong  to  the  State  if  there  be  no  contrary  title 
or  prescriptions  (Art.  560  of  the  Civil  Code);  but  those  which 
form  themselves  in  rivers  not  navigable  belong  to  the  bordering 
landholders,  in  accordance  with  the  Roman  law  (Art.  561).  Com- 
pare in  general  Arts.  556-563  of  the  same  code. 

185.  Waters  drinkable  and  for  irrigation.     A.  Mussulman  law.  Water  for 
The  springs  which  show  themselves  at  the  surface  of  the  ground  drinking 
without  man's  aid  and  which  form  the  rivers,  the  rivulets,  and  the 
streams,   cannot    be   the    property   of  individuals;    many  jurists 
question   whether   even   the   Sultan   has   the   right   to  grant  the 
exclusive  use  of  it  to  certam  individuals  (Tornauw,  c  Droit  Mussul- 
man,' page  285).     B.  Roman  law.     In   general,   running   waters 

(aqua  profluens)  are  considered  as  res  communes  omnium  (§  1, 
Inst.  2,  1),  and  consequently  the  State  could  only  regulate  the  use 
of  public  streams  (Lex  17,  Dig.  8, 3  ;  Lex  2,  Dig.  43, 12  ;  Lex  1,  §  42, 
Dig.  43,  20).  Nevertheless,  the  streams  which  do  not  flow  constantly 
are  not  subject  to  public  use :  "  Fluminum  quaedom  publica  sunt, 


348 


The  Ottoman  Land  Code. 


quredam  non.  Publicum  flumen  esse  Cassius  definit  quod  perenne 
sit"  (Lex  1,  §  3,  Dig.  43,  12).  "Item  fluminum  qiuedimi  sunt 
perennia,  quaedam  torrentia.  Perenne  est,  quod  semper  fluat, 
devaos  (torrens),  6  xeipdppoos"  (Lex  1,  §  2,  eod.).  As  regards 
rivulets,  the  doctrine  is  not  unanimous;  many  jurisconsults  pretend 
that  these  are  not  excepted  from  common  use.  (See  Windschcid, 
*  Pandekt.'  §  146,  note  7,  wtyo,  on  the  contrary,  considers  them 
as  belonging  to  private  property.)  C.  French  law.  "Streams, 
navigable  rivers,  and  the  seashore  are  considered  as  dependencies  of 
the  public  domain  "  (Art.  538  of  the  Civil  Code).  With  respect  to 
the  regulations  of  water  for  irrigation,  compare  the  laws  of  April  29, 
1845,  and  of  July  11,  1847,  on  irrigation  ;  compare  also  the  Law  of 
June  10-15,  1854,  on  the  free  flowing  of  water  from  drainage. 

186.  Kyuk  terke,  "  what  remains  of  the  root ;  "  fields  of  which  the 
crop  is  in  course  of  development,  or  those  where  something  has  been 
left  after  the  harvest  (Belin). 

187.  In  virtue  of  Art.  261  of  the  Ottoman  Penal  Code,  besides 
the  condemnation  to  pay  damages,  those  will  be  punished  by  fine 
who   take   their  beasts  to   cultivated  land  belonging  to   others. 
Administrative  measures-  besides  have  been  taken  in  this  respect. 
(See  the  chapter  "agriculture,"  classed  with  administrative  law.) 
Compare  also  Art.  479,  §  19,  of  the  French  Penal  Code. 

Boundaries  188.  Boundaries  of  towns.  The  new  delimitation  of  towns  and 
villages  probably  appears  to  have  no  other  view  than  that  of 
the  exact  delimitation  of  private  property  and  of  the  domain  of 
the  State.  (Compare  Art.  2,  §  1.) 

189.  See  note  66  and  Art.  34. 

190.  See  the  notes  52  and  160,  and  lirts.  24,  101,  103,  and  105. 

Khas.  191.  The  domains  (khas)  were  assigned  in  every  province  to  the 

post  of  Governor-General  instead  of  pay  to  this  functionary. 
(D'Ohsson,  'Tableau  de  1'Emp.  Ott.'  vol.  fli.  page  379.) 

Vinghana.  192.  This  expression  is  Bulgarian  :  derived  from  bachta,  father  ; 
bachtene  means  the  patrimonial  property  -which  conies  from  the 
father  (Belin,  §  316,  note  1). 


Kyuk 
Terke. 


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350 


The  Ottoman  Land  Code. 


Sheikh  ul 
Islam. 


200.  See  Article  4,  §  2. 

201.  Sheikh  ul  Islam,  as  supreme  interpreter  of  the  religious  law, 
being  at  the  head  of  the  body  of  Ulemas — that  is,  the  judges  (kadi) 
and  jurisconsults  (mufti)  of  the  religious  law  and  of  the  ministers 
of  the  religion  (imam),  he  is  invested  with  the  supreme  spiritual 
dignity  in  the  State,  as  the   Grand  Vizier  is  invested  with   the 
temporal  dignity.     He  is  th?  superior  Patriarch,  the  pope  of  the 
Ottoman  Empire,  and  he  is  distinguished  like  them  by  special 
honorific  titles.     Although  the  supreme  judge  still,  as  mufti  of 
the  capital,  he  has  no  judicial  vote,  but  only  consultative,  which 
determines  the  decision  of  the  judge.     But  he  decides  as  judge 
only  in  the  cases  sent  to  him  by  the  Sultan.     (Compare  D'Ohsson, 
'Tableau  de  1'Empire  Ott.,'  vol.  iv.  part  2,  page  506;  and  Yon 
Hammer, '  Des  Osmanischen  Eeichs-Staatsverfassung  und  Staatsver- 
waltung,'  vol.  ii.  pages  372-375.) 

202.  Divani-humayun  kalemi.     This  chancery  of  State,  which 
is   attached  to   the    Ministry  of  Foreign  Affairs,   is  subdivided 
into  three  offices,  of  which  one,  the  Beglik  Kalemi,  is  the  one  in 
which  are  drawn  up  all  the  documents  and  constitutions  of  the 
Empire.     It  contains  the  copies  of  the  Firmans  and  the  archives  of 
the  laws  (kanunname)  and  of  the  treaties,  with  the  Register  of  all 
the  firmans  and  berats  which  have  been  long  since  drawn  up,  so 
that  it  contains  the  copy,  the  archives,  and  the  Register.     (Com- 
pare the  work  of  Von  Hammer, '  The  Constitution  and  the  Political 
Administration  of  the  Ottoman  Empire,'  mentioned  in  the  pre- 
ceding note,  vol.  ii.  pages  119-120.) 

Explana-          203.  Archives  of  the  State  (see  note  133).     It  is  to  be  observed, 

toI7-  in  finishing  these  notes,  that  we  have  not  had  in  view  to  give  an 

explanation  of  the  Code,  but,  as  is  seeji  by  its  comparison  to  Roman 

law  and  to  French  legislation,  to  facilitate  the  appreciation  of  the 

provisions  of  the  Code  in  a  legislative  point  of  view. 


Divan 
Humayun. 


Notes.  351 


Notes  to  2.  * 

1.  As  regards   the   distinction  between  land  Mevkufe'  and  the  Distinction 
other  properly  called  Vakf  lands,  compare  Art,  4  of  the  Land  Law,  between 
notes  a,  b,  and  20. 

2.  Titles    of   possession    of   foreigners. — As  regards    titles  of  Title  of 
possession  or  of  property  in  general  of  strangers,,  whose  govern-  alien- 
ments  have  adhered  to  the  protocol  relative  to  them,  compare  the 
circular  of  the  Sublime  Porte  to  the  heads  of  the  legations  con- 
cerning "  the  exchange  of  ancient  title-deeds  for  new,"  showing  the 

true  nationality  of  the  holders  (Leg.  Ott.  Vol.  I.,  No.  9,  page  25). 
After  the  effect  of  the  said  circular,  the  journal  '  Jeridei  Havadis ' 
has  just  published,  in  this  respect,  an  official  communication  which 
by  a  Vezirial  order  to  the  governors-general  of  the  vilayets,  dated 
"  1  Djemazul  achir,  1289  "  (24  July,  1872)  has  also  been  published 
in  the  provinces. 

Here  is  the  translation  of  the  communication  according  to  the 
journal  '  Turquie.'  The  subjects  of  the  Powers  who  have  signed 
the  arrangement  published  on  the  7th  Safer  of  the  year  1284  of  the 
Hegira  who  would  wish  to  obtain  definitive  title-deeds  of  property 
in  their  own  name  in  exchange  for  the  title-deeds  which  have  been 
previously  delivered  to  them,  are  informed  that  they  can  make 
this  exchange  within  a  year  from  the  13th  August,  1872,  up  to  the 
end  of  the  month  of  July  1873.  They  will  have  to  pay  only  the 
third  of  the  tax  imposed  on  the  new  Hodjets  (title-deeds).  This 
delay  expired,  they  will  have  to  pay  to  the  Treasury  the  whole  of 
these  dues,  without  any  reduction  and  according  to  the  tariff  in 
force.  Compare  also  not$s  a,  b,  and  Art.  3  of  the  Land  Law  and 
Art.  8  of  the  new  instructions  concerning  Tapu  operations. 

4 

3.  Functionariey  of  the  Tapus. — The  Eegulations  of  the  Tapu  Tapu 
were  published  at  a  time  Vhen  the  previous  administrative  regime  officers, 
was  in  force,  according  to  which,  besides  the  Yali  and  Mutessarifs, 

the  officers  ad  hoc  of  the  financial  administration,  administrative 
councils  (mejljs)  were  established  in  each  Sanjak  as  also  in  every 
Vilayet.  These  functionaries  of  the  financial  administration  of  the 
Vilayet  and  the  Mute&arifs  of  the  Sanjaks,  as  representing  the 


352  The  Ottoman  Land  Code. 


Tapu  owner,  the  State,  have  been  entrusted  with  the  granting  domanial 

Officers.'  lands  to  individuals.  In  a  similar  manner  tho  said  councils  to 
whom  had  been  confided  at  the  same  time  the  jurisdiction  and  the 
administration  were  entrusted  (1)  with  the  previous  collection  of 
the  fee  paid  to  the  State  at  the  sales,  grants  or  hereditary  transfers, 
which  were  afterwards  passed  before  the  said  functionaries;  and 
(2)  with  the  putting  up  to  auction  the  lands  belonging  exclusively 
to  the  State  (Art.  18).  According  to  the  present  administrative 
regime  established  by  the  law  of  the  vilayets  (see  the  administrative 
law),  administrative  councils  distinct  from  the  judicial  councils— 
that  is,  from  the  ordinary  tribunals — are  also  formed  in  each  sanjak 
kaza,  and  in  the  capital  of  the  vilayet,  which  are  also  entrusted 
with  all  that  concerns  the  revenue  of  the  Tapu  (Arts.  14,  24,  and 
48  of  the  same  law),  and  by  whose  medium,  consequently,  the  put- 
ting the  said  lands  up  to  auction  is  done.  According  to  the  same 
law,  the  finances  and  the  accounts  of  the  Vilayet  are  entrusted  to  a 
functionary  of  the  Ministry  of  Finance,  bearing  the  title  of  Defterdar 
(director  of  the  finances),  Art  7 ;  also  the  finances  of  the  Sanjak 
are  confided  to  the  Mouhassebedje  (sub-director),  and  those  of  the 
Caza  to  the  Caimacan  (sub- governor).  These  then  are  the 
authorities  before  whom  all  acts  relative  to  an  alienation,  &c.,  were 
to  take  place.  But  by  the  Kegulations  about  the  general  registra- 
tion of  the  land  and  the  population,  of  the  14th  Djemaziul  achir, 
1277,  functionaries  ad  hoc  for  the  drawing  up  of  the  Cadastre 
have  been  appointed  in  the  departments  to  which,  after  the  pro- 
mulgation of  the  law  of  the  Vilayets  have  been  assigned  the 
acts  of  granting  lands,  but  only  until  the  finishing  of  the 
Cadastre  (Art.  1  of  the  new  instructions  concerning  the  Tapu 
operations,  No.  18).  In  every  capital  of  the  Vilayet  there  has  been 
established  a  director  of  the  archives,  a  sub-director,  and  a  record 
office  with  seven  secretaries,  entrusted  with  the  affairs  of  the  sanjaks 
and  considered  as  members  of  the  administrative  councils  relative 
to  affairs  about  land  (Art.  13  of  the  said  instructions).  For  all 
that  concerns  the  accessory  modifications  made  in  the  Regulations 
and  other  instructions  of  the  Tapu  on  account  of  the  new  ad- 
ministrative legislation,  compare  the  said  "  new  instructions." 

4.  Functionaries  of  agriculture. — In   each  vilayet   the  care   of 
watching  over  the  interests  of  agriculture  and  commerce  is  confided 


Notes.  353 


to  a  functionary  ad  hoc  (law  concerning  the  Vilayets,  Art.  12),  who  Officer  for 
however  is  not  included  amongst  the  ordinary  members  of  the  ad-  ^gricul- 
ministnitivc  council  (Art.  13,  eod.).     It  is  to  be  remarked  only  that   ure'    c' 
suits  between  agriculturists  on  account  of  cultivation  or  damage 
done  to  sowed  lands,  are  prosecuted  before  the  competent  authorities 
in  presence  of  the  said  directors. 

5.  See  the  note  133  of  the  Land*  Law  respecting  the  Imperial 
Archives  of  the  capital,  of  which  there  is  question  in  the  article. 
As  regards  the  archives  of  the  Vilayets  (see  note  3  and  Art.  22). 

6.  See  the  law  on  the  extension  of  the  right  of  inheritance,  which  Formalitie:- 
has  modified  Arts.  54-55  of  the  Land  Law,  in  the  note  100  of  *nd  fees 
the  Land  Law.     If  the  delivery  of  the  title-deeds,  on  account  of  a  CesSjon 
transfer  has  not  taken  place  in  time,  the  tax  5  per  cent.  (Art.  8) 

will  always  be  paid  in  a  possible  case  of  sale ;  see  Arts.  10  and  13 
of  the  Regulations  (No.  3). 

7.  As  regards  the  meaning  of  the  term  "  hypotheque,"  compare 
note  176  of  the  Land  Law,  and  Arts.  25-30,  and  notes. 

8.  Compare  Art.  36  of  the  Land  Law,  note  74. 

9.  The  heirs  of  the  owner  must  have  a  new  title-deed  of  owner-  New  title- 
ship  (Tapu)  in  their  name,  and  pay  the  fixed  fee  for  the  hereditary  de?d  ^or 
transfer  of  the  lands.     It  is  this  violation  of  the  law  (and  not  the    eir" 
irregularity  of  the  forms)  of  which  there  is  question  in  Art.  10. 
Compare  also    note    6    and   Art.  13   of    the   Instructions    there 
mentioned. 

10.  Compare  Arts.  77  in  fine  and  78  of  the  Land  Law. 
.11.  Compare  Arts.  3  and  129  of  the  Land  Law. 

12.  See  also  Arts.  9-10  ofjtoe  Regulations  (No.  3). 

13.  Compare  also  Art.  5  of  the  Regulations  (No.  3).     If  these  Waste 
lands   are    planted  with  cotton,   the   owners  enjoy,  besides,    an  lands, 
immunity  for  five  years ;  compare  a  transitory  law,  which  is  fixed 

to  be  in  force  for  ten  years,  dated  "26.  Redjeb,  1278,"  on  the 
measures  taken  in  favour  of  the  culture  of  cotton. 

14.  Compare  Art.  10-i  of  the  Land  Law  and  note  162. 

2  A 


354  TJie  Ottoman  Land  Coae. 

Lands  hold  15.  By  the  law  on  the  extension  of  the  right  of  inheritance  to 
}rY  1111"perial  the  collateral  relations  of  the  deceased,  as  regards  land  Ernirie'  and 
Mevkufe',  it  has  been  ordered  that  the  provisions  of  the  said  law  be 
applied  to  the  lands  and  chiftliks  held  in  virtue  of  imperial  title- 
deeds  of  property,  mulknamei  humayun  (see  Art.  4  of  the  said 
law). 

16.  See  note  3. 

17.  See  also  note  3. 

18.  Compare,  as  regards  the  right  of  preference,  Arts.  41,  42, 
44,  45,  59,  modified;  64,  83,  112  of  the  Land  Law,  and  the  notes 
83,  106,  107,  112,  116  (eod.).     See  also  Art.  15  of  the  Regulations 
(No.  3). 

19.  Compare    Art.    2    and  'notes   and  Chapter  IV.    Mahlulat 
vacancy,  Art.  59  modified,  and  following,  of  the  Land  Law. 

20.  See  note  3  ;  compare  also  Art.  15  of  the  Instructions  (No.  4). 

Reward  for  21.  As  regards  the  information  of  Vakf  property  held  unjustly  - 
disclosure  by  individuals  without  any  knowledge  on  the  part  of  the  pious 
foundation  (of  the  Vakf)  to  wnich  it;  belongs  we  must  discriminate  : 
(1)  For  Mevkufe  lands  the  informer  receives  as  remuneration  5  per 
cent,  on  the  amount  of  the  value  of  the  land,  for  urban  lands 
five  per  thousand  (compare  an  official  proclamation).  Within 
the  circumscription  of  the  sixth  municipal  circle  of  the  capital,  the 
fee  Ichbarie  belongs  to  the  said  municipality,  whose  Council  must 
give  notice  of  the  properties  which  are  returned  to  the  Vakf  (com- 
pare Art.  62  of  its  general  Eegulations).  (2)  In  the  provinces  the 
informer  receives  1  per  cent,  (compare1  Art.  45  of  the  Regulations, 
on  the  attributions  and  duties  of  the  directors  of  the  Vakfs 
situated  in  the  provinces  of  the  19.  Jemaziul  akhir,  1280,  classed 
in  the  Administrative  Law,  under  the ^i tie  "Administration  of  the 
Evkaf,"  see  note  b,  §  1,  of  the  Land  Law). 

Superses-         22.  This  system  has  been  modified  ;  instead -of  the  certificate  in 

sion  of 

certificate. 


slon  °  question  as  a  provisional  title  until  the  sending  of  the  title-deed  <»i 


possession  by  the  Record  Office  of  the  Imperial  Archives,  there  is 
delivered  to  the  possessor  a  printed  indicative  table  taken  from  the 


Notes. 


iche  (see  the  Preface  to  the   Regulations,  No.  3;    ^ 
compare  notes  24  an. 

-.ote3  in  l: 

• 

•he  Imperial  Archives  of  the  Empire  in  the  capital, 
and  not  at  the  Archives  of  the  Vilayets  (compare  note  133,  page  307, 
and  note  5). 

regards  the  functionaries  ad  hoc,  compare  note  3.     As  Provision 
regards  suits,  see  also  Art.  30,  and  notes  €8   and  32.     It  is  to  for  I>a-vT 
be  observed  that  no  proceedings  in   the    Courts  nor  any  act   of  taxes> 

any  landed  rroperty  whatever  before  the  functionaries 
ad  hoc  can  take  pla-.x-  if  the   interested  has  not  proved  by  the 
•••'•  ad  hoc  the  payment  of  the  taxes  (compare  Art.  3  of  the 
Part  of  the  Kegulations   of  the  Cadastre  mentioned  in   the  ' 
note  3) ;  also,  every  Ottoman  subject  in  general,  and  in  the  places 
where  the  Cadastre  is  finished  every  tax-payer,  must  in  such  a  case 
produce  his  personal  certificate  (noufous-teskeressi)  to  prove  his 
identity  and  the  payment  of  the  dues  on  his  land  and  revenues, 
"  which  according  to  this  system  is  to  be  vise'ed  on  the  back  of  the 
document  (compare  the  ordinance  on  personal  certificates  ci 
in  the  Administrative  Law  under  the  title  "  Cadastre,"  Le>.  Ott. 
III.). 

26.  Compare  the  Arts.  116-118  modified  of  theL  and  Law.  and  Mortgage, 
on  the  modifications  made  to  it,  in  note  176.  '  It  must  be  observed 

that  by  the  terms  "hypetheque"  and  "  hypothe'quer ?J  is  intended 
the  institution  "  firagh  bil  vefa,"  according  to  which,  as  seen  in 
the  Art.  27,  the  creditor  ^innot  during  the  lifetime  of  his  debtor 
prosecute  him  for  the  compulsory  sale  of  the  mortgaged  lands, 
except  in  the  case  where  the  debtor  has  appointed  in  the  document 
ad  hoc  an  attorney  <for  this  purpose. 
• 

27.  See  Art.  116  of  the  Land  Law  and  the  preceding  note. 

28.  The  law  intends  here  the  Councils  of  the  previous  administra-  Court*  f.>i 
tive  regime ;  but  according  to  the  present  regime,  which  prohibits  mortgage 
all  interference  of  the  A'^nimstrative  Councils  in  the  judicial  affairs  ma*ters- 
(Arrs.  14, 34,  and  48  of  the  law  on  the  Vilayets),  the  question  pi ••_• 


356  The  Ottoman  Land  Code. 


Courts  for%  itself  whether  these  Councils  are  still  competent  in  this  respect, 

matters86     OI  lf  ^  be  ^  ordinary  Courts. 

According  to  the  law  on  hypothecation  of  property  (No.  16), 
the  ordinary  Courts  of  the  sanjaks  and  the  kazas  are  competent  to 
give  the  authorisation  to  mortgage  a  property  in  virtue  of  which 
the  Local  Civil  Eeligious  Court  (mehkeme)  delivers  the  document 
(hod jet)  of  the  mortgage  act.  r  On  account  of  the  generality  of  the 
expressions  of  this  law,  its  provisions  might  be  considered  as  relative 
to  domanial  lands ;  but  on  considering  that  every  act  of  alienation 
of  mirie  lands  is  made  before  the  functionaries  of  the  Tapus  (note  3), 
even  after  the  promulgation  of  the  law  of  the  Vilayets  (compare 
Arts.  1-2  of  the  instructions  concerning  Tapu  operations),  it  must 
be  admitted  that  the  act  of  mortgage  must  be  made  before  the  Ad- 
ministrative Councils  in  presence  of  the  functionary  ad  hoc,  and  not 
before  the  Courts  (compare  also  the  law  on  the  forced  sale  of  mort- 
gaged property,  both  Mirie  and  Mevkufe,  for  the  payment  of  the 
debt  in  case  of  the  death  of  the  debtor,  No.  15).  On  the  other 
duties  of  these  Councils  compare  note  3,  above.  But  if  such  a 
voluntary  jurisdiction  belongs  to  them,  it  is  not  the  same  as  regards 
the  litigious  jurisdiction,  that  is,  suits  between  debtor  and  creditor 
about  mortgage.  In  this  case  it  is  the  ordinary  Courts  to  whom  the 
competency  belongs,  and  not  to  the  Councils,  who  by  law  are 
prohibited  from  all  interference  in  judicial  affairs.  (See  also  Art.  30, 
and  note  32.) 

29.  By  the  provisions  of  this  article  those  of  Art.  117  of  the  Land 
Law  have  been  completed. 

Sale  of  30.  The  Art.  28  has  been  modified  by  the  law  on  the  compulsory 

mortgaged   ga]e    Qf  j^ir^   an(j    Mevkufe,   &c.,  property,  in   virtue   of  which, 

after  the  decease  of  the  debtor,  the  forced  sale  of  the  mortgaged 

property  is  permitted  (compare  especially  Arts,  2  and  4  of  this  law, 

No.  15). 

Liability  of      31.  Compare  also  Art.  4  of  the  law  mentioned  in  the  preceding 

ot  er  an  s  no^e>     However,  if  the  creditor  holds  an  executory  document,  we 

gagor.          can  sav  ^at,  according  to  the  new  law  on  the  compulsory  sale  of 

landed  property  (No.  22),  the  sale  of  tba  other  lands  held  by  the 

deceased  may   be  proceeded  against   by   the   mortgagee  creditor, 


Notes.  357 


because  the  law  makes  no  distinction  between  the  cases  of  the 
-e  or  the  existence  of  the  debtor,  as  it  does  in  mortgages. 

32.  As  regards  the  voluntary  jurisdiction  of  the  Administrative  Court  for 
Councils  in  this  respect,  see  note  28.     By  C«uncil  the  law  means  mortgage 
also   here    the    local    administrative   according   to    the    previous  m 
regime,  to  which  Council  was  attached  both  the  jurisdiction  and  the 
administration  (note  3),  but  after  ttte  separation  of  this  authority 

the  jurisdiction  in  this  respect  belongs  to  the  ordiuary  tribunals 
(see  the  said  note  28 ;  compare  also  note  25). 

33.  See  note  3. 

34.  As  regards  the  judicial  or  vulgar  sense  of  the  term  (chiftlik),  Chiftlik. 
as  also  the  right  of  succession  concerning  them,  see  Art.  131  of  the 

Land  Law.  With  respect  to  legislation  about  minors,  compare  the 
Arts.  18,  20,  50-53,  61,  63,  65,  76,  and  the  respective  notes  of  the 
Land  Law. 

35.  Mevkufe    lands,    depending    on  the    public   domain    and  Mevcoufe. 
assimilated  to  Mine  lands. — Compare  Art.  4  of  the  Land  Law ;  see 

above,  Art.  30. 


Notes  to  3. 

1.  See  No.  1. 

2.  See  No.  2. 

3.  That  is  the  Tapu  Law.     As  regards  the   Supplementary 
Instructions  (see  No.  4). . 

4.  The  public  functionaries  and  all  other  individuals  who  are  Liability  of 
guilty  of  an  act  contrary  to  the  arrangements  relative  to  the  putting  officials, 
up  to  auction  and  to  the  adjudication  of  the  revenues  of  the  State, 

or  in  opposition  to  the  other  provisions  of  the  law  which  governs 
the  farming  of  the  revenues,  will  be  dismissed  from  their  functions 
and  be  punished  by  imprisonment  of  one  to  two  years  or  by  exile 
of  two  or  three  years.  They  will  be  required  to  indemnify  the 
public  treasury  for  the  losses  which  this  fact  may  have  caused 
(Art.  88  of  the  Ottoman  Penal  Code ;  compare,  however,  Art.  83  of 


358  The  Ottoman  Land  Code. 

the  same  Code  as  well  as  the  Art.  88,  and  the  note  141  of  the  Land 
cLaw). 

5.  Compare  Arts.  3  and  129,  and  notes  13,  14  of  the  Laud  Law. 

6.  Compare  Art.  7  of  No.  4. 

7.  Compare,  in  regard  to  joint  possession,  Arts.  15  to  19,  §§  2, 35, 
41,  43,  and  59 ;  §  8  of  the  Laud  Law,  Art.  8  of  the  Instructions 
(No.  4). 

8.  Compare  Art.  10,  and  notes  6  and  9,  of  the  Tapu  Law ;  Art.  5 
of  the  Instructions  (No*.  4). 

9.  That   is   to   say)   according  to    the  ancient    administrative 
division  of  the  Empire.     As  regards  the  present,  compare  the  law 
of  the  \7ilayets  and  note  3  of  the  Tapu  Law. 

10.  That  is  the  Instructions  (No.  4). 


Notes  to  4. 

1.  See  No.  1. 

2.  But  the  promulgation  of  this  Law  took  place  the  7th  Ramazan, 
1274  (21st  April,  1858). 

3.  See  No.  2. 

4.  Alienation  of  land.     Compare  Art.  36  and  following  of  the 
Land  Law,  Arts.  3-4  and  6  of  the  Tapu  Law,  Art.  2  of  the  Regu- 
lations regarding  Tapu  Seneds,  and  Art.  3. 

5.  Hereditary  transmission.     Compare  54  and  following  of  the 
Land  Law  with  the  respective  notes,  Arts.  5  and  8  of  the  Tapu 
Law,  and  Art.  4. 

6.  Granting  of  lands.     Compare  Arts.  103-105  of  the  Land  Law, 
Arts.  12-13  of  the  Tapu  Law,  Art.  5  of  the  Regulations  regarding 
Tapu  Seneds  and  Art.  3  of  No.  18. 

7.  Delivery  of  title-deeds  to  those  who  have  none.    Compare 

Art.  11  of  the  Tapu  Law,  Arts.  1,  9,  10  of  No.  18. 

• 

8.  Exchange  of  old  title-deeds  against  new  ones.     Compare  the 


Notes.  359 

articles  pointed  out  in  the  preceding  note.     As  regar  icrs,  f 

comi  ;'U  Law. 

.     Compare  Art.  47  of  the  Land  La 
•i  the  fixin-j:  of  th»  boundaries  bet\ 
seller  and  buyer.     See  also  Art.  4  of  Xo.  18. 

If.  Chiftlik.     Compare  Art.  131  of  the  Land  Law.     Arts.  3: 
of  the  Tapu  Law,  Art.  6  of  Xo.  3. 

11.  ilk  (Art.  29  of  the  Land  Law)  and  woods  destined  Woods, 
for  firewood  and  held  by  Tapu  (Art.  30  «f  the  same  Law).     On 
these  kinds  of  woods  a  rent  is  imposed  (ijarei  zemin)  equivalent  to 

the  tithe,  whilst  other  woods  or  private  gardens  are  subject  to  the 
legal  tithe  (Arts.  25,  28  of  the  Land  Law). 

12.  Khirmen,  or  space  for  mills  and  threshing-floors.     Compare 
Art.  34  with  note  66  of  the  Land  Law. 

13.  Ground  for  sheepfolds.     Compare  Art.  94  of  the  Land  Law. 

14.  Land  subject  to  a  fixed  payment.    Besides  the  lands  mentioned 
in  the  preceding  notes  (10-13),  even  the  oper  spaces  used  ah  antiquo 
as  market-places  and  fairs  are  also  subject  to  a  fixed  payment 
(compare  Art.  95  of  the  Land  Law). 

15.  Place  of  encampment  for  beasts  :  Compare  Art.  24  of  the  Land 
Law  regarding  those  which  are  held  by  private  individuals  by  Tapu 
title,  and  Art.  101  of  the  same  Law  as  regards  those  which  belong 
to  a  commune. 

16.  Pasturages  as  dependencies  of  Chiftliks.    Compare  99  of  the 
Land  Law. 

17.  Compare  the  prec^difig  note. 

18.  Compare  Art.  76  of  Jhe  Land  Law,  and  Art.  8  of  the  Tapu 
Law. 

19.  Terres  mortes  (dead*  lands).     Compare  Art.  103  of  the  Land 
Law,  Art.  12  of  the  Tapu  Law,  Art.  5  of  the  Regulations  regarding 
Tapu  Seneds,  and  note  6  of  Xo.  4. 

20.  See  note  4. 

21.  Exchange  of  lands,    Compare  Art.  36  of  the  Land  Law  with 
Note  74,  Art.  7  of  the  Tapu  Law. 


360  The  Ottoman  Land  Code. 

22.  Compare  note  5. 

23.  Compare  Art.  10  of  the  Tapu  Law  and  note  9  eod.,  Art.  13 
of  No.  3. 

24.  Eight  to  Tapa.      Compare  Art,"  59  modified  and  notes 
100,  106,  and  Articles  pointed  out  in  note  140  of  the  Land  Law. 

25.  Lands  fallen  to  the  State  (by  escheat).     Compare  Art.  59 
modified,  and  following  of  the  Land  Law;   Art.  18  of  the  Tapu 
Law  ;  Art.  15  of  No.  3.     Compare  also  note  19  of  the  Land  Law. 

26.  Clandestine  possession.    Compare  Art.  77  of  the  Land  Law,, 
and  Art.  4  of  No.  3. 

27.  Compare  Art.  2  of  No,  3. 


Notes  to  8. 

1.  See  note  4  of  No.  3. 

2.  As  regards  vakf  houses,  compare  No.  23, 

Title-Deeds  3.  In  virtue  and  in  consequence  of  the  arrangements  contained 
of  Vakf  jn  ^ne  Instructions  in  question,  the  Ministry  of  the  Evkaf  has 
property.  published  the  fonowmg  notification. 

NOTIFICATION  CONCERNING  THE  TITLE-DEEDS  OF  VAKF 
PROPERTY. 

To  have  the  benefit  of  dedicated  property  (vakf),  urban  or 
rural,  it  is  necessary  as  much  after  the  civil  law  as  after  the  religious 
law,  to  provide  oneself  with  a  permit  emanating  from  the  manager 
of  the  competent  vakf,  so  that  if  the  holders  of  lands  dependent 
on  a  vakf,  and  held  by  inheritance,  by  purchase,  or  even  for  any 
other  reason,  have  not  an  official  document  validating  their  right  of 
possession,  they  will  be  obliged  to  obtain  such,  a  title-deed.  This 
same  regulation  is  applicable  to  proprietors,  by  virtue  of  a  hojet, 
of  buildings,  vineyards,  and  trees,  which  are  on  vakf  lands.  These 
proprietors  must  furnish  themselves,  if  they  have  none,  with  a 
correct  permit  for  the  dedicated  lands,  where  the  said  buildings, 
trees,  &c.,  are  situated.  The  holders  of  title-deeds  emanating  from 
any  other  authority  than  the  manager  <?f  the  vakf,  will  also  be 
obliged  to  obtain  correct  title-deeds  as  the  law  directs.  In  order  to 


Notes.  361 


facilitate  and  secure  at  the  same  time  the  service  there  must  be  Title-deed* 
given  to  those  who  have  a  right  to  them,  certificates  detached  & Vakf 
from  the  registers,  with  counterfoils  which  have  been  sent  to  all  Pr°P€r 
the  managers  of  vakfs,  until  the  sending  of  the  definitive  title- 
deeds  by  the  Central  Treasury  of  the  vakfs.  These  certificates 
will  be  filled  up  in  the  way  previously  indicated.  On  the  arrival 
of  the  definitive  title-deeds  they  wijl  be  delivered  to  the  holders  of 
the  certificates,  and  these  will  be  collected  and  sent  to  the  Treasury 
of  the  vakfs.  Those  persons  who  for  the  first  time  obtain  vakf 
title-deeds  will  pay  the  legal  fees  according  to  the  nature  and 
value  of  the  property  they  hold;  they  will  pay  besides  three 
.  piastres  as  cost  of  the  paper,  and  one  piastre  as  fee  of  the  office. 
The  holders  of  valid  title-deeds,  bearing,  that  is,  a  known  seal,  who 
wish  to  exchange  their  title-deeds  against  new  ones,  will  also  pay  a 
fee  of  three  piastres  as  cost  of  the  paper,  and  one  piastre  as  office- 
fee.  They  may  thus  have  vakf  title-deeds  according  to  rule. 

The  holders  also  of  title-deeds  emanating  from  the  Treasury  of 
the  vakfs,  and  having  at  its  head  the  Tughra,  may  also  exchange 
their  title-deeds,  which  are  no  longer  in  force,  against  new  by 
paying  the  above  fixed  fees. 

He  who  gives  information  of  dedicated  lands  held  without  the 
knowledge  of  the  competent  vakf  will  receive  as  a  recompense  a 
fee  of  five  per  cent,  on  the  sale  by  auction  of  the  said  lands.  As  for 
he  who  informs  as  to  urban  property,  which  falls  to  the  vakf  by 
the  extinction  of  the  owners,  he  will  receive  as  a  recompense  five 
piastres  per  thousand. 

The  fees  received,  as  well  as  the  three  piastres  as  cost  of  paper 
and  one  piastre  for  office-fee,  will  be  noted  on  the  certificates 
given  to  the  holders ;  it  is  formally  prohibited  to  take  anything 
beyond  the  said  fees.  He  who  infringes  these  regulations  will  be 
severely  punished. 

The  provisional  certificates  bearing  the  seal  of  the  vakf  which 
have  been  already  delivered  against  payment  of  all  the  legal  taxes 
to  those  who  have  a  right  to  them  to  be  in  force  until  the  arrival 
of  the  definitive  title-deeds  which  will  be  delivered  to  the  holders 
of  rural  and  urban  property,  will  not  be  replaced  by  the  new 
certificates  which  have  recently  been  sent,  but  they  will  continue 
to  be  in  force  until  thCjarrival  of  the  definitive  title-deeds  sent  by 
the  Treasury  of  the  vakfs. 


362  The  Ottoman  Land  Code. 

He  who  inherits,  from  his  father  or  even  from  another  relation 
urban  or  rural  land,  and  who  takes  possession  of  the  said  land 
without  having  recourse  to  the  competent  authority,  and  afterwards 
applies  to  the  said  authority  to  sell  his  land,  will  pay,  as  a  sort  of 
fine,  double  fees. 

Those  who,  after  the  publication  of  the  present  notification  and 
the  sending  of  detailed  instructions  to  the  directors  of  the 
vakfs  neglect,  without  legal  hindrance,  to  conform  to  the 
present  regulations,  that  is,  if  those  who  have  no  title-doeds  do 
not  hasten  to  procure  them,  and  if  those  who  have  title-de<  ds 
emanating  from  any  other  authority  than  the  manager  of  the 
vakf  do  not  exchange  their  title-deeds  against  new  ones,  and  that 
within  the  delay  of  a  year,  will  be  condemned  to  pay  double  fees,  and 
the  holders  of  lands  of  which  the  value  pro-rata  should  be  collected, 
xviil  see  their  lands  sold  by  auction.  For  this  purpose  the  present 
notification  has  been  promulgated  in  order  that  every  one  should 
conform  within  a  brief  period  to  the  Regulations  therein  contained. 


Notes  to  9. 

1.  Compare  Art.  4,  and  especially  §  2  and  note  20  of  the  Land 
Law.      Compare  also  notes  1-2  ot  the  Tapu  Law. 

2.  Compare  Art.  4,  §  2  of  the  Law  mentioned  in  the  preceding 
note.     See  also  Conclusion  of  the  same  Law. 

3.  See  No.  1. 

4.  Ijaretein,  perpetual  renting.     Compare  Art.  4  of  No.  19. 

Rio-ht  to  5.  The  right  to  Tapu  is  devoted  only  to  lands  Mevkufe, 
Tapu.  depending  on  the  domain  of  the  State  that  is  rural  property.  As 
regards  urban  property  held  by  ijaretein  (see  ndte  4),  such  a  right 
to  Tapu  is  not  established  (see  Art.  10  of  No.  8).  It  has  already 
been  said  that  the  right  of  preference  to  Tapu  of  collateral  relations 
and  the  wife  of  the  deceased  has  been  abolished,  as  a  consequence  of 
the  right  of  inheriting,  which  has  been  established  in  their  favour 
(See  notes  106  and  130,  §  3,  of  the  Land  Law). 

6.  See  No.  8. 


Notes.  363 


Notes  to  10.  9 

1.  As  regards  the  laws  relative  to  the  right  of  inheritance  at  Right  of 
:mon  law,  that  is  the  legislation  relative  to  the  inventories  of  inherit- 

inheritances  in  grncr.il  and  of  Christian  inventories  in  particular.  at 
see  Leg.  Ott.  Vol.  I.  No.  10,  page  27,  and  the  Vezirial  Order,  Leg. 
Ott.  Vol.  1.  No.  11,  page  41. 

2.  Archives  of  the  Sublime  Porte.     By  this  law  the  provisions  of  Rules  of 
the  Land  Law  relative  to  the  order  of  succession  of  Mine  and  Mrvkufe  lnhent' 
Lands  have  been  essentially  modified.    Thys  Art.  55  and  §§  1-7  amended 
of  Art.  59  of  the  said  Law  have  been  abolished;    consequently 

the  provisions  relative  to  the  right  of  preference  to  Tapu  of  the 
collateral  relations  and  of  the  wife  or  the  surviving  husband  esta- 
blished by  the  Law  have  no  longer  any  application,  because  the 
law  in  question  has  declared  them  to  be  legitimate  heirs.  Compare 
notes  96,  ItO,  106  of  the  said  Law. 

3.  That  is  Art.  54  of  the  Land  Law. 

4.  The  law  of  succession  of  the  surviving  husband,  or  of  the  Husband 
surviving  wife  has  been  recently  completed  by  the  following  supple-  an<i  wife- 
mentarj  article. 

When  a  divorced  husband  or  wife  contracts  a  new  marriage 
before  the  expiration  of  the  legal  delay,  and  he  or  she  dies  before 
there  has  been  any  conjugal  intercourse,  the  survivor  of  the  divorced 
inherits  the  property  of  the  deceased.  In  the  same  way  when  a 
husband  seriously  ill  divorces  his  wife  and  he  dies  before  the  ex- 
piration of  the  legal  delay  relative  to  divorce,  the  divorced  wife 
inherits,  according  to  the  Sheri,  the  deceased  husband. 

5.  (1)  Firagh   bil   Vefa^;    as  regards  this    institution    compare  Mortgage. 
Arts.  116-118  of  the  Land  Law,  Arts.  25-30  of  the  Tapu  Law, 

and  as  regards  the  new  laws^  which  have  completed  or  modified  the 
provisions  of  the  Land  Law,  note  176  of  the  said  Law.  (2)  Com- 
pulsory sale.  Compare  Art.  115  of  the  said  Law,  which  has  been 
notified  by  the  laws  mentioned  in  note  175  of  the  Land  Law. 

6.  Compare  Art.  121  of  the  Land  Law  and  Art.  15  of  the  Tapu 
Law. 

7.  Compare  Arts.  25,26,  29,  44,  59,  §§  7, 66, 81,  83,  90  of  the  Land 
Law,  relative  to  trees  and  buildings,  as  also  their  respective  notes. 


364  The  Ottoman  Land 

8.  But  up  to  now,  no  new  edition  of  the  Laws  in  question  has 
c*been  published. 

Notes  to  11. 

1.  This  temporary  law  has  ceased  to  be  in  force  on  account  of 
the  expiration  of  the  time  on  one  part,  and  on  the  other  in  con- 
sequence of  an  Imperial  Order  which  the  Government  has  com- 
municated through  the  newspapers. 

2.  Compare  Art.  4  and  note  6  of  No.  10. 


Notes  to  12. 

1.  Under  this  denomination  is  understood  the  lands  vakf  on 
which  buildings  of  all  sorts  are  erected  (official  note). 

2.  Musteghillat,  urban  immovables  which  have  no  buildings 
but  which  bring  in  profit  or  a  rent  (note  official). 

3.  The  Ijaretein,  which  literally  signifies  two  rents,  constitutes 
the  essential  character  of    the  vakf  property.     The  first   rent, 
called  Ijarei  Muajele,  anticipated  rent,  is  paid  at  the  moment  of 
taking  possession ;  and  the  second,  Ijarei  Muejele,  or  rent  when 
due,  constitutes  the  rent  which  the  holder  of  the  vakf  property 
must  pay  every  year  (official  note). 

4.  See  note  4  of  No.  10. 

5.  See  No.  14. 

6.  See  No.  14. 

7.  See  Art.  3,  note  5  of  No.  10.  < 

Mukata.  8.  Mukata  signifies  forfeit  rent ;  under  this  form  the  owner  of 
a  vakf  frees  himself  of  all  obligation  towards  the  administration 
of  the  Evkaf  beyond  the  annual  payment,  and  the  buildings  which 
are  on  the  vakf  lands  are  considered  as  Mulk  (official  note). 


Note  to  14. 

• 

But  this  law  (No.  12)  bears  the  date  of  the  7.  Sepher,  1284. 


Notes.  365 


Notes  to  15. 
1.  See  Note  5  of  No.  10. 
e  page  81. 

3.  Right  to  Tapu  see  notes  24  of  4,  and  18  of  2. 

4.  See  note  of  14. 

5.  However  see  note  31  of  2. 


Note  to  16. 

With  reference  to  the  hypothecal  re'gime,  Feragh  bifrvefa,  com-  Mortgage 
pare  note  176  of  Land  Law,  as  also  the  Arts,  and  laws  there 
mentioned ;  see  also  notes  26  and  28  of  the  Tapu  Law.  With 
respect  to  what  has  been  said  in  note  28,  it  is  to  be  observed 
that  the  tribunals  civil-religious  (sheri)  are  competent  to  legalize 
judicially  the  title-deeds  issued  by  the  competent  authorities  (see 
note  5  of  No.  19). 


Notes  to  18. 

1.  These  instructions,  which  bear  no  date,  have  been  issued, 
according  to  what  is  said  in  Art.  2,  after  the  new  administra- 
tive system — that  is,  after  the  promulgation  of  the  law  of  the 
vilayets,  which  took  place  in  1867.  They  are  then  the  newest 
Instructions,  having  in  view  to  regulate  certain  things  according  to 
the  present  administrative  regime,  and  to  determine  the  duties  of 
the  new  functionaries  of  the  Tapus,  which  provisionally,  until  the 
termination  of  the  Cadastre,  are  charged  with  all  that  is  relative  to 
title-deeds  of  possession  of  the  domanial  lands,  whilst,  as  is  known, 
the  functionaries  of  the  'finance  and  the  Kaimacams  are  the 
ordinary  officials  of  the  JTapus.  Compare  note  130  of  the  Land 
Law,  and  note  3  of  the  Tapu  Law. 

*2.  See  No.  1. 

3.  See  No.  2. 

4.  See  No.  4. 

• 

5.  As  regards  No.  3,  compare  note  9. 


366  The  Ottoman  Land  Code. 

6.  Alienation  and  transmission.     Compare  notes  3-4,  and  12 
Oof  No.  4. 

7.  Lands  escheated   to  the    state  (put  up  to    auction).     See 

note  25  of  No.  4,  and  No.  20. 

« 

8.  Clandestine  possession  (See  note  26  of  No.  4). 

9.  That  is  Nos.  1,  2,  3,  4,  and  18. 

10.  Exchange  and  delivery  of  title-deeds.     Compare  notes  7-8 
of  No.  4 ;  see  also  Art.  3  of  the  Land  Law. 

11.  Lands  granted  t£>  colonists.     Compare  the  law  on  coloniz- 
ation in  Turkey  by  foreign  families  ;  and   especially  Arts.  4,  8, 
and  9. 

12.  Compare  Arts.  104-105  of  the  Land  Law. 

13.  Compare  note  130  of  the  Land  Law,  and  note  3   of  the 
Tapu  Law. 

14.  See  the  preceding  note.     As  regards  the  sale  by  auction 
compare  No.  20. 

15.  Eight  to  Tapu.     Compare  note  24  of  No.  4. 

16.  Compare  in  regard  to  this  what  has  been  said  in  note  20  *of 
the  Land  Law. 

17.  Compare  Art.  Ill  of  the  Ottoman  Penal  Code. 


Notes  to  19. 

1.  As  is  seen,  the  renting  with  double  payment  corresponds  to 
locatio  perpetna  agrorum  civitatis  of  the  Boman  legislation  (see  note 
25  of  the  Land  Law). 

2.  See  No.  12. 

3.  Cum  finitus  fuerit  usus  fructus,  revertitur^  ad  proprietatem  et 
ex  eo  tern  pore  nudgs  proprietatis  dominu^  incipit  plenam  habere  in 
re  potestatem  (Inst.  §4,  2,  4). 

4.  See  Regulations  cited  in  note  21  in  fine  of  the  Tapu  Law,  and 
also  No.  23. 

5.  As  regards  the  other  formalities  relative  to  the  judicial  legisla- 
tion of  the  title-deeds  in  question,  even  tlfose  of  domanial  lands  by 


Notes.  367 


the  tribunals   civil-religious,  compare  the  Regulations  as  to  their 
jurisdiction  inserted  in  the  section  "Ledroit  judicial  re"  of  the 
puhlic,"  especially  under  the  title  "Jurisdiction  exceptionnelle. 

.  1.1  and  16,  as  also  note  26  of  the  Tapu  Law. 
7.  That  is,  the  tribunal  civil-religious  of  control  or  inquiry. 


> 
Note  to  20. 


1.  Note  130,  §  1  of  the  Land  Law,  as  also  Art.  18  of  the  Tapu 
Law,  were  already  printed  when  we  learnt  »the  publication  of  the 
Order  in  question.  It  is  for  this  that  we  have  not  mentioned  it. 


Note  to  22. 

1.  By  this  law  the  provisions  of  Art.  115  of  the  Land  Law  Sale  of 
which  established  the  inalienability  of  the  domanial  land  without  'an(^s  f° 
the  consent  of  the  owner  have  been  abolished.     Compare  in  this 
respect  what  has  been  said  in  note  175  of  the  same  Law,  see  also 
i^os.  7  and  15.    As  regards  compulsory  sale :  (1)  of  the  immovables 
belonging  to  a  foreign  bankrupt  by  the  syndics  of  his  bankruptcy  ; 
or,  (2)  of  the  immovables  of* a  foreign  debtor  by  another  foreign 
creditor  who  has  obtained  a  judgment  before  foreign  Courts,  com- 
pare Art.  3  of  No,  13. 


Notes  to  23. 

1.  See  the  note  4  of  No.  19. 

2.  Compare  the  Art.  6  of  No.  19. 

3.  Possessio  alternativa  ^ 


(     369     ) 


INDEX. 


ACTION, 

for  fraud  as  between  alienor  and  alienee  cannot  be  continued  by 

heirs,  64 
limitation  of, 

as  to  Tapn,  11,  12,  288 
mortgage  &c.,  not  by  deed  cannot  afford  grounds  of,  85,  135, 

237 

right  of,  of  alien,  169 

time  for  bringing  action  as  to  alienation  got  by  force,  61 
Yergi  must  be  paid  before,  can  be  brought  or  search  made  in 

certain  cases,  278 

ALIEN, 

bankruptcy  of,  procedure  upon,  170 

disabilities  of,  59,  339 

extension  of  law  in  favour  of,  168 

issue  of  title-deeds  to,  261 

legal  position  of,  as  to  property,  169 

operation  of  law  as  to,  171 

registration  of  property  of,  118 

succession  to  property  of,  170 

testamentary  powe^of,  170 

ALIENATION; 

application  of  law  with  regard  to,  in  favour  of  foreigners,  169 

by  owner  to  one  of  another  village,  23 

effect  upon,  of  force,  fraud,  &c.,  61,  341 

fees  or  duties  payable  upon,  74,  96,  236,  252 

form  of  certificate  used  for,  101 

illegal  conditions  make,  void,  61,  62,  342 

2   B 


37°  Index. 


ALIENATION— continued. 

of  lands  after  two  years'  abandoment,  38 
of  lands  held  to  religious  uses,  illegal,  65,  345 
provisions  as  to,  of  Arazi  Mirie',  20-27,  292-304 
unauthorized  by  partner  or  stranger,  23>.  297 
validity  of,  by  owner  in  articulo  mortis,  64,  65,  344 

AKAZI  KHARAJIE, 

definition  of,  2 

division  of,  into  two  classes,  2 

may  acquire  the  character  of  Arazi  Mirie,  2,  282 

when  it  belongs  to  the  Beit  ul  Mai,  2,  281 

AKAZI  MEMLUKE, 
classification  of,  1,  2 
definition  of,  1,  279 
trees  growing  upon,  cannot  be  held  by  Tapu,  57,  333 

AKAZI  METRUKE, 

classification  of,  1,  6,  283 

cutting  of  timber  in  forests,  &c.,  48 

definition  of,  1,  6,  280 

enclosure,  provisions  against,  49,  321 

provisions  as  to,  48-53,  321-330 

trees  growing  upon,  cannot  be  held  by  Tapu,  57,  333 

ARAZI  MEVAT, 

classification  of,  6,  283 

cutting  of  wood  upon  unoccupied,  55,  332 

definition  of,  6,  283 

law  as  to  appropriation  of,  76 

notice  as  to  woods  upon,  185,  186 

provisions  as  to,  54-56,  330-333 

trees  growing  on,  cannot  be  held  by  Tapu,  57,  333 

use  by  public  of  unassigned  grass-lands,  55,  333 

ARAZI  MEVKUFE.  See  IJARETEIN,  MUSAKAFAT,  MUSTEGHILLAI  , 

VAKF. 

acquisition  of  title  to,  by  length  of  possession,  41,  42,  314 
certificates  as  to,  147-157 
characters  of  4,  5,  282,  283 


Ind  371 


ARAZI  MEVKTJFfi— omtfnwd. 

classification  of,  4,  r>. 

conditional  sale  to  creditor  valid,  02,  342 

definition  of,  4,  5,  282,  283 

devolution  of,  bysjnheritai.ee,  28-30,  305-308 

emlak  upon,  provisions  as  to,  22'. » 

fees  or  duties  payable  upon  alienation  or  inheritance  of  (see 

ALIENATION,  FEES,  INHERITANCE),  252 
legal  procedure  as  to,  assimilated  to    that   as  to  A.   Mirk', 

147 

monthly  register  of  "  events  :'  as  to,  264: 
mortgage  of,  illegal,  62,  34:2 

—  mode  of  carrying  out,  177,  178,  365 

no  rent  taken  from  occupier  of  Mahlul  who  has  cultivated,  42 
reward  for  information  as  to  concealed,  79 
ight  to  Tapu  incident  only  to  Mevkufe  of  a  rural  character, 

362,  n.  5 

.  separation  of  affairs  of,  from  those  of  A.  Mirie,  255 
tax  upon,  increased  (obsolete  law),  161-163,  364 
trees  growing  upon,  cannot  be  held  by  Tapu,  57,  333 

ARAZI  MIR  IE.     See  TAPU,  and  passim. 

acquisition  of  title  to,  by  lapse  of  time,  41,  42,  314 

alienation  of,  20-27,  292-304 

Arazi  Kharajie  and  Arazi  Ushrie  may  acquire  the  character 
of,  2 

buildings  upon,  16,  291 

classification  of,  3,  282 

conditional  sale  to  creditor  valid,  62,  342 

conveyance  of,  71,  st  seq. 

definition  of,  1,  279,  281 

devolution  of,  upon  <ftath,  20,  28-30,  305-308 

emlak  upon,  provisions  as  to,  229,  et  seq. 

escheat  of,  31-47,  308-320 
•-•     extension  of  law  as  to,  to  "  Khassa  "  and  other  lands,  67,  3 18 

liability  of,  to  saleTor  payment  of  owner's  debts,  218 

MaLlalat  (Escheat)  of,  31-17,  308-320 

Mai  Mvmours,  authority  of,  as  to  A.  Mirie,  71,  351 

mode  of  possession'of,  8-19,  284-292 

2  B  2 


372  Index:. 


AEAZI  MIRIlil— continued. 

mortgage  of,  illegal  (obsolete  clause),  62,  342 

mortgage,  provisions  as  to,  81-85,  177,  178,  355,  356 

new  buildings  upon,  16,  291 

non-Mussulman  subject  may  purchase,  259 

no  rent  to  be  taken  from  occupier  of  Mahlul  who  cultivates,  42 

ownership  of  buildings,  sites,  vineyards,  &c.,  of  deceased  owner, 

43,  44,  315 

permission  of  official  necessary  upon  alienation  of,  20,  21,  293 
reward  for  information  as  to  concealed,  79 
sale  of,  provisions  as  'to,  20-27,  292-304 
separation  of  affairs  of,  from  those  of  A.  Mevkufe,  255 
tax  upon,  increased  (obsolete  provision),  162,  364 
timber  upon,  15 

title  to,  must  be  evidenced  by  deed,  89 
rineyards  and  orchards  upon,  13,  14 

AEAZI  USHRIE, 

definition  of,  2 

may  acquire  character  of  Arazi  Mirie,  2 

when  it  belongs  to  the  Beit  ul  Mai,  2 

AUCTION, 

Evkaf  Treasury  to  carry  out  sale  by,  of  certain  lands,  262 

liability  of  highest  bidder  at,  221 

of  lands  taken  in  execution,  220,  221 

protection  of  highest  bidder  at,  45 

puffing  at,  prohibited,  221 

sale  by,  of  Mahlul  houses,  224 

sale  by,  of  Mahlul  land,  78,  143,  212,  366 

secretaries  to  be  present  at,  of  Mahlul,'  214 

time  for  claim  of  ownership  of  land  put  up  at,  221 

BROTHER.     See  INHERITANCE. 

BUILDINGS, 

application  of  Land  Law  to,  on  Mirid  and  Mevkuie  lands,  160, 

363 

certificates  issuable  as  to,  275 
increase  of  ijare  upon  erection  of,  175 


Index.  373 


BUILDINGS— continued. 

management  and  preservation  of  number-plates  on,  133 
ownership  of,  erected  by  deceased  tenant,  43,  315,  316 
.     preferential  right  of  owner  of  site  of,  23,  36 

prohibition  of  new,  save  under  certain^  conditions,  16,  291 
.     public,  registration  of,  118 

reduction  of  ijare  when,  are  destroyed,  175 
regulation  of,  123  » 

sale  of  Mulk  (freehold),  25 
sites  of,  ownership  of,  43 
valuation  of  sites  of  destroyed,  246  , 
valuation  of  new  or  restored,  246 

CENSUS, 

division  of  sexes  to  be  observed  in  making,  117 
permit,  effect  of,  117 
registration  of,  111  et  seq, 
transmission  of  census-books,  124: 

CEKTIFICATE, 

arrangement  of,  in  register,  100 

as  to  ownership  of  land  of  deceased,  73 

composition  of  register  by  certificates,  100 

counterfoils  of,  where  to  be  kept,  98 

delivery  of,  to  alienee  at  time  of  sale,  96 

different  forms  of,  when  to  be  used,  101 

duplicate  of,  how  made  and  sealed,  106 

duty  of  vendor  to  get,  before  conveyance,  71,  72 

foot  of,  how  filled  up,  106,  154,  155 

for  Musakafat  and  Musteghillat  Mevkufe,  147-157 

forms  of,  101-6,  ^8-55,  271-8 

how  to  be  filled  up,  103-7,  148-57 

Imam  must  issue,  as  to  alienation,  &c,  269 

issue  of  certificate,  145,  269 

making  up,  time  for,  98 
*       pure  Mahlul,  ho w  certificate  as  to,  is  to  be  filled  up,  105 

separation  of  certificates,  156 

set  form  cut  out  of  Kochan  Books  to  be  used,  88 

specimens  of,  271-8 

tabulated,  regulations  as  to,  138 


3  74  Index. 


CERTIFICATE— continued. 
<     temporary,  forms  of,  adopted,  99 
transmission  of,  107,  156 
triplicate,  certificate  must  be  in,  107 
Vakf  lands,  form  and  contents  of  certificate  as  to,  208 

CHIFTLIK, 

application   of  Mirie  land  procedure  to,  held  by  Mulkname 

Humayun,  160 
definition  of  term,  68,  69 
non-Mussulman  subject  may  hold  arable  lands  belonging  to, 

259 

pasturage  of,  not  to  be  trespassed  upon  (A.  Metruke),  51,  329 
preferential  rights  of  Mussulman  and  non-Mussulman  subjects    - 

in  certain  Chiftliks,  259 
provisions  as  to,  of  orphan,  86,  87 
when,  may  be  created,  68,  349 

CHILD, 

absent,  right  of,  as  to  inheritance  of  lands,  29,  306-7 
descent,  rules  of,  when  there  is  no,  31-47,  308-320 
right  of,  to  inherit  land  of  parent,  28-30,  305-8 

CONCEALED  LANDS, 

disposal  of,  on  death  of  owner  without  heirs,  90 
reward  to  informer  as  to,  79,  241,  242 

CONVEYANCE 

of  Arazi  Mirie 

binding  effect  of  first  conveyance,  21,  296 

for  valuable  consideration,  21,  295,, 

form  of  certificate  used  for,  101 

formalities  of,  71,  et  seq.  < 

mode  of,  71,  72,  et  seq.  ' 

permission  of  official  needful  to  a  valid,  21,  294 

purchaser  or  agent  must  be  present  to  execute,  20,  29.' >    - 

taxes  to  be  paid  before  transfer  of  lands,  131,  132 

without  consideration,  21,  295 

without  consideration,  estimated  value  to  be   stated  in 

case  of  conveyance,  105 


Index.  375 

CREDITOR, 

duty  of,  to  give  notice  to  creditor,  219  ? 

holding  land  as  security  may  sell,  63,  342 
rights  of,  against  heir  of  debtor,  64,  343 
rights  of  assignee  of  creditor's  claim, ^19 

rights  of  one,  when  another  does  not  desire  sale  of  debtor's 
'lands,  222 

DEBT, 

creditor  holding  land  as  security  may  sell  it,  63,  343 
exemption  of  Mahlul  lands  from  ^ability  to  sale  for  payment 

of,  216 

land  cannot  be  seized  for  (obsolete  provision),  62,  342 
sale  of  Musakafat  and  Musteghillat  lor  payment  of,  216,  217 
saving  as  to  old  debts,  222 

DEBTOR, 

execution  of  judgment  against  lands  of,  220 

notice  to,  by  creditor,  219 

option  of,  as  to  things  to  be  sold,  222 

saving  for,  219 

time  granted  to,  for  paying  debt,  219,  220 

DESCENT.     See  INHERITANCE. 

DISABILITIES, 

of  person  abandoning  Ottoman  nationality,  59,  339 

of  Tapu  official  and  his  kinsmen,  46 

racial,  59,  338 

religious,  59,  338 

removal  of,  as  te  tenure  of  arable  Yakf  and  Mirie,  259 

DUTIES.     See  FEES, 

EMLAK, 

actions  as  to,  237 

administration  of  Emlak  affairs,  officers  for,  230 

affairs  relating  to  Emlak  in  Constantinople,  how  regulated, 

260 
auction  sale  of,»  236 


f 
376  Index. 


EMLAK — continued. 

,  certificates  for  alienation,  inheritance,  &c.,  to  be  brought  to 

Emlak  office,  269 
clerk,  duties  of,  231 
effect  of  title-deeds  as/  to,  237 
fees  for  Yoklama  of,  233 
fees  payable  upon  mortgage  of,  236 

sale  of,  235  ' 

succession  to,  235 

inheritance  of,  of  alien,  170 

inspection,  (Yoklama),  tow  to  be  carried  out,  231,  238 

issue  of  new  title-deeds  for,  231 

mortgage  of,  mode  of  effecting,  236 

office  for  business  regarding,  230 

preparation  of  certificates  by  Emlak  office,  271 

procedure  as  to,  of  alien,  169  n. 

registration  of,  231,  234,  238 

sale  of,  provisions  as  to,  234-6 

separate  Yoklama  registers  for  simple,  and  Mukata,  233 

Sheri  Elam  essential  for,  237 

specimens  of  certificates  which  must  be  sent  to  Emlak  office, 

270-7 

temporary  certificates  as  to,  delivery  of,  232,  233 
title-deeds  for,  provisions  as  to,  229,  230,  233 
Yoklama  of,  how  to  be  carried  out,  231,  232,  250,  252 
Yoklama  register,  making  of,  232,  233,  250 

ESCHEAT  (MAHLULAT).     See  DESCENT. 

of  Arazi  Mine  upon  failure  of  issue  of  owner,  31-47,  308-321 

EVENTS.     See  OCCURRENCES. 

EVKAF  TITLE-DEEDS  ADMINISTRATION,    , 
constitution  of,  201 
duty  of  clerks  to  keep  registers,  202 
registers  of,  classification  of,  202 
separate  register  for  Mazbuta  and  Non-  Mazbuta  Yakfs  to  be 

kept  by,  202 
staff  of,  201 


Index.  377 

EXCHANGE, 

a  payable  upon,  74  > 

of  old  title-deed  for  new  one,  certificate  for,  101 

EXECUTION, 

against  lands  of  debtor,  220 

auction,  sale  of  lands  taken  in,  220,  221 

FEES.     See  INHERITANCE,  SALE,  SUCCESSION. 
amount  of,  payable  for  title-deed,  74,  92,  93  . 

,  payable  upon  exchange,  74, 

— ,  payable  upon  mortga<$,  74,  173,  174,  181,  205, 

235 

,  payable  upon  sale,  74 

,  payable  upon  succession,  75,  205,  246 

as  to  Musakaiat  and  Musteghillat  Mekuie,  139,  173,  174,  245 
double  fees  levied  by  way  of  penalty  in  certain  cases,  140,  143 
Emlak,  fees  payable  upon  sale  or  mortgage  of  or  succession  to, 

233,  235,  236,  237 
payable  upon  conveyance,  72,  74,  96 
payable  upon  succession,  73,  96,  205,  245 
remission  of,  205 

FORESTS, 

conversion  of,  into  arable  land,  11,  289 

cutting  of  timber  in  Baltalyk  (Arazi  JUetruke),  48 

enclosure  of,  provisions  against  (A.  Metruke),  49,  321 

tenure  of,  by  Tapu,  16,  292 

tithe  upon,  16 

FRAUD, 

duties  of  Mai  Momours  to  hear  actions  as  to  (A.  Mirie),  80 
effect  of,  upon  alienation  got  by,  61,  341 

FREEHOLD..   See  MULK. 

FRUIT-TREES,'   •" 

provisions  as  to,  13,  14,  15,  291 
GARDEX, 

land  not  to  be  converted  into,  13, 14,  289 

law  for  protectjpn  of,  66,  348 

sale  of,  of  infant,  lunatic,  &c.,  27,  305 


i 

378  Index. 


GEDIK, 

*  amount  of  rent  payable  for,  held  in  Ijaretein,  246 
certificate's  to  alienation,  270 
certificate  issuable  as  to,  specimens  of,  276 
equivalent  to  Musafeifat,  199 

mode  of  estimating  yearly  rent  of  Mulk  taken  from,  173 
office,  constitution  of,  201 

r 

GUARDIAN, 

duties  of,  as  to  property  of  infant,  lunatic,  &c.,  26,  27,  40,  303 
management  of  lands  o.Jf  infant,  lunatic,  &c.,  by,  40,  313 
right  of,  to  Tapu  in  certain  events,  36,  311 

HEIR, 

absent,  disposal  of  lands  of,  39,  40 

absent,  right  of  as  to  inheritance  of  lands,  29,  337 

action  for  fraud  cannot  be  continued  against,  64,  343 

descent  to,  rules  as  to,  28-30,  306-9 

devolution  of  lands  of  absent,  40,  313 

devolution  of  lands  upon,  28-30,  305-9 

disposal  of  lands  when  no,  140 

duty    of,    as   to    process  of  inheritance  to    Musakafat  and 

Musteghillat,  174 

obligation  to  pay  Tapu  value  in  certain  cases,  38 
one  house,  fit  for  habitation,  to  be  reserved  for  heir  of  debtor, 

217 

preference  of,  of  the  first  degree,  244 
right  of,  of  partner  deceased,  239 
rights  of  creditor  against,  of  debtor,  64,  343 

HIGHWAYS, 

preservation  of,  49,  324 

HOUSES, 

purchase  of  share  in  house  by  co-owner,  £24 

sale  by  auction  of  Mahlul,  224 

sale  of  shares  in  joint  dwelling,  225,  226 

HUSBAND, 

descent  to,  32 

divorce  by,  effect  of,  228  * 


Index.  379 


IirSP.AXl)— <;,),f  tuned. 

purchu-f  l>y,  i't'  Mahlul  share  of  deceased  wife,  •> 

share  «.f,  in  descended  Musakafat  and  Musteghillat,  2-i-i 
succession  as  between,  and  wife,  228 

r» 

IJ  ARETE  IX, 

alienation  of  Musakafat  and  Musteghillat  Vakfie  held  in,  203 
iution  of  Mazbuta  and  non-Mazbuta  Yakfs,  held  in,  199 
meaning  of,  364  (u.  3  to  XII.) 

mortgage  of  Musakafat  and  Musteghillat  Vakfie  held  in,  203 
no  right  to  Tapu  in  lands  held  in,'142 
payment  of  Muejele  to  Vakf  upon  alienation,  199 
rules  of  inheritance  of  Musakafat  and  Musteghillat  held   in, 

:-8 
sale  by  auction  of  certain  lands  which  have  to  be  converted 

into, 
tenure  of  one  class  of  Musakafat  by,  199 

INCOME, 

enquiries  as  to,  117 

INFANTS, 

lands  of, 

division  of,  when  partners,  11,  287 

letting  of  lands  of,  when  guardians  neglect  cultivation,  40 

loss  of  rights  by  lapse  of  time,  22 

management  of  lands  of,  40,  313 

purchase  bv,  26,  301 

sale  by  infants  of,  25,  301-302 

sale  o',  2(3,  303 

saving  of  rights  as  to,  34,  310 

INHERITANCE,     * 

by  children,  brother,  sister,  husband,  wife,  &c.,  28-32,  305-8 

devolution  of  A-azi  Mirie  by,  28-30,  305-8 

devolution  of  Mazbuta  and  non-Mazbuta  Yakfs  by,  199 

facts  as  to,  to  be  set  forth  in  certificate  as  to,  152 

lees  payable  upon  inheritance,  74,  75,  96,  166,  173,  205,  235, 

245. 
form  of  certificate  as  to,  101 


380  Index. 

I NH  ERITANCE— continued. 

fform  of  certificate  as  to,  how  to  be  filled  up,  104,  153 
of  Arazi  Mirie  upon  death  of  owner,  28-30,  31-47,  158,  159, 

305-321,  363 

right  of,  of  heirs  of  atfen,  170 
rules  of,  28-30,  31-47,  158,  159,  305-321,  363 
rules  of,  to  Musakafat  and  Musteghillat  Vekfs  held  in  Ijaretein, 

164,  364 
specimen  of  certificate  issuable  as  to,  272,  273 

IRRIGATION, 

preservation  of  ancient  rights  as  to  water  for,  65,  347 
protection  of  works  for,  67 

ISSUE, 

descent  to,  28-30,  305-8 

devolution  of  lands  upon  failure  of,  31-47,  308-321 

JOINT  OWNER.     See  PARTNER. 
K1SHLAK.     See  PASTURAGE. 
LAND  OFFICIALS.     See  OFFICIAL. 

LANDS, 

abandoned,  disposal  of,  38,  39,  77,  313,  354 

certificate  of  severance  of,  145 

chargeable  in  hands  of  heir  of  debtor,  64,  342 

choice  of,  to  be  sold  by  auction,  187 

classification  of,  1 

concealed,  provisions  as  to,  79,  90,  241,  242 

devolution  of,  by  inheritance,  20,  28-30,  31-47,  308-322 

distribution  of,  8 

disposal  of  unoccupied  (A.  Mevafy,  54,  331-33 

disposal  of  vacant,  by  State,  33,  90,  140,'  141,  309 

division  of  partners'  shares  in,  10,  11,  144,  145,  175,  287 

estoppel  of  lessee  or  borrower  as  to  title  to,'  13,  289 

failure  of  heirs,  disposal  of  land  upon,  140 

inalienability  of,  held  to  religious  uses,  65,  345 

issue  of  new  title-deeds  after  severance  of  shares  in,  145 

provision  against  conversion  of,  13,  14,  289 

reclaimed  from  lake  or  river,  disposal  of,  63,  347 


Index.  381 


LA  X  1>S— ,•„„/;,)  ued. 

reclaimed  Irom  the  sea,  ownership  of,  69  350 

rules  of  inheritance  of,  28-32,  305-8 

sale  by  partner  of  his  share  in,  95 

sale  of,  for  payment  of  debts,  63,   246-224,  343 

sale  of,  upon  death  of  owner  without  heirs  (A.  Mirie),  90 

waste  lauds,  disposal  of  141 

See  also  INFANTS,  LUNATICS,  PARTNERS,  POSSESSION. 

LUNATE 

lands  of, 

division  of,  when  partners,  ll,  287 

letting  of  lands  of,  when  guardians  neglect  cultivation,  40 

loss  of  rights  of  partner  by  lapse  of  time,  22 

management  of  lands  of,  40,  313 

no  claim  by,  for  deterioration  of  land  unlawfully  occupied 

by  another,  12,  289,  290 
purchase  by,  302 

right  of,  as  to  crops  sown  by  stranger,  12,  289 
sale  of,  25-7,  301-5 
saving  of  rights  of,  34,  110 

MAHLUL  (UNCLAIMED  LAND), 
auction-sale  of,  143,  212 
auction  of  Arazi  Mahlul  to  which  there  is  a  right  to  Tapu 

illegal,  92,  142 

certificate  as  to,  how  filled  up,  105 
disposal  of  land  which  has  become,  34,  78,  308,  309,  354 
facts  as  to,  must  be  stated  in  certificate,  153 
grant  of  Mahlul  land,  142 
houses,  sale  of  ^lahlul,  224-7 
notice  of  property  becoming,  270 
procedure  when  land  has  become,  64 
protection  of  highest  bidder  for,  45 
reward  for  information  as  to  concealed,  79 

MARRIED  WOMAN.     See  WIFE. 

MAZBATA, 

facts  to  be  stated  in,  78 


382  Index. 


MAZBATA—  continued. 
r  issue  of  75,  78 
provisions  as  to,  89,  100 
transmission  of,  upon  conveyance  of  lands,  72,  73,  75,  80,  100, 

107,  109 

use  of  printed,  89 
Vakfs,  provisions  as  to,  172,  198-200 

MEADOWS  (Chayir), 

disposal  of  vacant,  44,  318 
held  by  Tapu,  9,  285 

extension  of  inheritance'of  Musakafat  anrl  Musteghillat  found 
in,  172 

METALS, 

ownership  in,  57,  58,  333-5, 

MINERALS, 

ownership  in,  57,  58,  333-5 

MINOE.     See  INFANT. 

MISTAKE, 

no  remedy  for,  as  to  area  of  land  sold,  unless  superficial  area  is 
expressly  stated,  24,  298-300 

MORTGAGE  (VEFAEN  FERAGH), 

debt,  payable  in  the  first  instance  out  of  debtor's  movables,  178 
duties  or   fees  payable   upon   (Istiglal),    of    Musakafat    and 

Musteghillat,  173,  205 
fees  payable  upon,  74,  181 

Feragh  bil  Vefa,  provision  as  to,  159,  166,  208,  244,  365 
formalities  for  creation  of,  81,  177,  178,  1§0 
inalienability  of  land  subject  to,  82 
Istiglal  of  Musakafat  and  Musteghillat,  ITS 
legal  position  of  mortgagee  of  Arazi  Mirie,  81     ' 
mode  of  carrying  out,  of  A.  Mirie  and  Mevkufe,  177,  178 
must  be  by  deed,  85 

of  Mazbuta  and  uon-Mazbuta  Vakfs,  203 
of  Musakafat  and  Musteghillat  Yakfie,  203,  244 
power  of  sale  as  to,  82 
provisions  as  to,  81-5,  216,  356-7 


Ind  383 


MORTGAGE— 

•  ration  of,  onnpiilsnr 

-  to,  of  Musakafat  and  Musteghillat,  21G 

imen  of  certificate  issuable  upon  Creation  of  a,  271 
Terliin,  law  as  to  the,  of  lands,  180,  1M 
Vakfs,  provisions  as  to  mortgage  of,  207,  208 

MORTGAGEE, 

cannot  assign,  82,  • 

cannot  come  upon  other  lands  of  mortgagor,  84,  178,  356 

MORTGAGOR, 

duty  of,  of  Musakafat  and  Musteghillat  Vakfie,  204 
procedure,  when  mortgagor  dies  without  having  redeemed,  83, 

356 
sale  of  land  of,  who  has  died  leaving  no  heirs  (obsolete  clause) 

83,  356-7 

MULK  (FREEHOLD) 

alienation  of  land  upon  which  exist  Mulk  buildings  or  vine- 
yards, 25 

application  of  procedure  to  Mukata  Vakf  sites  and  Mulk 
buildings,  167 

levy  of  Mulk  Hujet  upon  Mulk  buildings,  &c.,  when  land  is 
Vakf,  143 

ownersldp  of  Mulk  buildings,  &c.  erected  by  deceased  owner, 
43,  44,  315-7 

rent  when  Musakafat  or  Musteghillat  is  mixed  with  pure,  245 

title-deed  for  pure,  263 

MURDERER, 

forfeiture  by,  59, 540,  336 

MUSAKAFAT     MEVKUFE     (VAKF     SITES    OF     BUILDINGS), 
certificate  as  to,  139 
devolution  of  Mazbuta  and  non-Mazbuta  Vakfs  upon  death, 

199 

disposal  of  land  upon  failure  of  heirs,  140 
duties  or  fees  payable  with  respect  to,  139,  140,  173,  245 


384  Index. 


MUSAKAFAT  MEVKUF^— continued. 

v  extension  of  inheritance  of,  in  certain  Vakfs,  172 
fiscal  provisions  as  to,  172 
increase  of  tax  upon,  166,  246,  364 
leased  by  Muajele,  Pelivery  to  Treasury  of  price  or  value  of, 

139 

meaning  of  term,  198 
mortgage  of,  how  created,  178,  365 
mortgages  of,  duties  payable  upon,  173 
new  title-deeds  to  be  issued  for,  140,  247,  249,  261 
no  right  to  Tapu  in,  1<*  2 
office,  constitution  of,  201 

owner  of,  must  have  title-deed  from  Vakf,  138,  249 
permissive  character  of  law  of  inheritance  of,  166,  167,  257 
records  of,  263 

reservation  to  debtor  of  one  house  and  certain  land,  218 
rules  of  inheritance  of,  held  in  Ijaretein,  243-8 
sale  of,  for  payment  of  debts,  216,  218 
separate  register  (Mufredat  Defter)  to  be  kept  for,  139 
tenure  of  one  class  of,  in  Ijaretein,  199 
valuation  of,  to  be  quinquennial,  247 

MUSTEGrHILLAT  MEVKUFE    (URBAN  PROPERTY,  NOT  BEING 
BUILDING  SITES), 

certificate  as  to,  how  to  be  filled  up,  138,  139 

devolution  of  Mazbuta  and  non-Mazbuta  Vakfs  upon  death, 

199 

disposal  of  land  upon  failure  of  heirs,  140 
duties  or  fees  payable  with  respect  to,  139,  140,  173,  245 
extension  of  inheritance  of,  in  certain  Va,kfs,  172 
fiscal  provisions  as  to,  172 
increase  of  tax  upon,  166,  245,  364       , 
meaning  of  term,  199 
mortgage  of,  how  created,  178,  365 

mortgage  of,  duties  payable  upon,  173  • 

new  title-deeds  to  be  issued  for,  140,  247,  249,  261 
owner  of,  must  have  title-deed  from  Vakf,  138,  249 
permissive  character  of  law  as  to  inheritance,  166,  167,  257 
records  of,  263  . 


Index.  385 

M I '  STEGHILLAT  MEVKUF&- oo« </w  «erf. 

reservation  to  debtor  of  one  house  and  certain  land,  218 
rules  of  inheritance  of,  held  in  Ijaretein,  243-- 
sale  of,  for  payment  of  debts,  216,  218 
valuation  of,  to  be  quinquennial,  247' 

OCCUPIER, 

acquisition  of  title  by  length  of  possession,  41,  42 

conflicting  claims  between  real  owner  and  actual,  how  to  be 

adjusted,  18,  19,  241-2 

disposal  of  land  in  case  of  illegal  possession,  41 
ownership  of  crops,  buildings,   vineyards,   &c.,   of  deceased, 

42-44 
protection  of,  who  holds  without  title,  4>2 

OCCURRENCES, 

census  occurrences,  schedule  of,  127 

record  of,  128 

record  of  changes  in  state  of  proper c.  -,127 

OFFICIAL, 

assignment  of,  to  Kaza,  183 

assignment  of,  to  Sanjak,  183 

disabilities  of  land,  and  of  his  kinsmen  as  to  Mahlul,  46,  320 

duties  of  Defter  Khakani,  263 

employment  of  additional,  255 

punishment  of,  who  breaks  regulations,  134 

remuneration  of  additional,  256 

salary  of  land,  193,  197 

ORPHAN, 

Chiftlik  of,  law  as  to,  86,  87 
management  of  property  of,  86,  87 
sale  of,  for  orphan's  benefit,  87 
transmission  of  Mazbata  as  to  property  of,  87 

OUTLYING  LANDS, 
disposal  of,  91 
issue  of  title-deeds  for,  76 

occupation  of,  unlawful  without  licence  from.  State,  91 

2   0 


386  Index. 


OUTLYING  LANDS— -continued. 
' "  provisions  as  to  tithe  upon  Boz,  Kiraj  and  Tashlik,  76 
Tapu  value  to  be  paid  in  certain  Cases,  91,  92 

OWNER, 

absent,  right  of  children  of,  29,  308 

alienation  by,  in  articulo  mortis,  64,  65,  344 

conflicting  claims  between  real',  and  occupier,  how  adjusted,  18 

erectioii  of-  new  buildings,  &c.,  by  joint,  without  consent  of 

other  or  others,  18,  19,  291 

forfeiture  by,  upon  failure  to  cultivate  properly,  37,  311 
preferential  right  of,  as  to  things  placed  by  another,  23 
owner  of  trees  and  buildings  as  to  their 

site,  36,  311 

protection  of,  against  trespass,  9,  10,  18 
restriction  upon, 

as  to  new  buildings,  16 

as  to  cutting  up  land  for  brick-clay,  9 

PARENTS, 

descent  of  land  to,  28,  306 

duties  of,  as  to  property  of  infants,  26,  303 

right  of  absent,  29,  308 

PARTICULARS.    See  OCCURRENCES. 

ARTNER, 

alienation  by,  22 

devolution  of  lards  upon,  when  partner's  issue,  &c.,  fails,  32, 
33,308 

division  of  land  held  in  partnership,  145,  175 

erection  of  new  buildings,  &c.,  by,  wi£nout  consent  of  co- 
partner, 18,  19,  291 

new  title-deed  for  severed  part  of  land,  175 

no  pre-emption  in  partner  upon  sale  of  share  by,  22 

right  of  heir  of  deceased,  as  to  land  alienated  by  partner,  22, 
239 

sale  by,  of  his  share  in  land,  95,  358 

sale  of  partner's  share  in  land,  144 


Index.  387 

PAKTXKIJ—  cnntlnncd. 

severance  of  shares  <>f,  in  lands,  10,  1-1;"),  286 

condition  precedent  to,  10,  _^7 

finality  of,  10,  286 

permission  of  official  necessary  for,  10    „. 

presence  of  owners  or  their  agents  necessary^  J*0,  11,  287 

when  partner  is  an  in&nt  or  lunatic,  11,  287  !• 
unauthorised  alienation  by,  23,  296 

PASTURAGE, 

application  of  law  to,  13,  289        » 

disposal  of  vacant,  44 

exclusive  use  of  assigned  (A.  Metruke)  53 

limits  of,  to  be  preserved  (A.  Metruke),  51,  329 

of  Chiftliks  not  to  be  trespassed  upon  (A.  Metruke),  51,  329 

preservation  of  common  (A.  Metruke),  50,  328 

tax  upon,  by  whom  payable,  67,  348 

POSSESSION, 

acquisition  of  title  by  length  of,  41,  i2.  314-315 
disposal  by  State  of  lands  in  case  of  illegal,  41,  313-314 
mode  of,  of  Arazi  Mirie,  8-19,  284-292 
of  A.  Mevkufe  without  deeds,  unlawful,  250,  251 
unlawful  (i.e.,  without  title),  251 

no  claim  for  mesne  profits  diiring,  12,  289,  290 

PROPERTIES, 

inquiries  as  to,  117 

particulars  of,  118 

punishment  for  concealment  of,  116 

registration  of,  1>1,  112,  116,  117  ^ 

true  value  of,  must  be  stated,  118 

PURCHASED 

delivery  of  title-dfeed  to,  97,  222 
0      must  obtain  permission  of  official,  20,  21,  294: 

non-Mussulman  subject  may  be,  of  arable  Yakf  and  Mirie 
lands,  259 

protection  of,  21,  296 

RACIAL  DISABILITIES.     See  DISABILITIES. 

2  c  2 


388  Index. 


HATING, 

committee  for,  114 
scale  for  (ba&),  122 

RECLAIMED  LAND,   c 
disposal  of,  65,.  347 
owner&hip*t>f  land  relaimed  from  sea,  69,  350 

REGISTER, 

contents  of,  100 

keeping  of,  100 

receipts,  nature  of,  inserted  in  register,  253 

separate,  for  each  Kaza,  80 

REGISTRATION, 

districts  for,  113 

of  census,  111,  et  seq. 

of  conveyances  of  land,  72 

officers  (census  and  properties),  duties  of,  113,  125,  129 

of  properties,  111,  et  seq. 

of  title-deeds,  195 

RELIGIOUS  DISABILITIES.    See  DISABILITIES. 

EENT, 

increase  of,  upon  registered  Musakafat  and  Musteghillat,  245 
mode  of  estimating  yearly  rent  of  Mulk  taken  from  owner  of 

Gedik,  173 

of  enclosures,  mills,  otlaks,  &c.,  by  whom  payable,  67,  348 
regulation  of  Musakafat  and  Musteghillat  for  which  there  is  a 

fixed,  247 
separate,  for  each  Vakf,  245 

c 

SALE, 

before  receipt  of  new  title-deeds,  145, 146 

binding  effect  of,  21,  295-296 

by  auction  of  Mahlul  land,  78, 143,  212,  354,  366 

by   auction  of  Mahlul  to  which  there  is  a  right  to  Tapu 

illegal,  92 
by  infants,  lunatics,  &c.,  25,  301 


Index.  389 


SALE— tiontfi 

by  partner,  of  share,  22,  95  9 

certain  lands  to  be  sold  by  Muhasebejis  of  Evkaf,  266 

debts,  sale  of  lands  for  payment  of,  63,  216^23,  :i 

fees  payable  ujx>n,  74,  96,  235, 

formalities  of,  71,  74,  353 

leave  of  official  necessary  for,  or  exchange  .«f  Jands,  20,  21, 
293-294  * 

Mazbuta  and  non-Mazbuta  Vakfs,  203 

mode  of,  by  guardian,  26,  303 

Musakafat  and  Musteghiliat  Vakfie',  law  as  to  sale  of,  203-206, 
216 

no  remedy  for  mistake  as  to  area,  24,  298 

non-MusuIman  subject  may  purchase  arable  Vakf  and  Mirie, 

259 

of  Chiftlik  belonging  to  orphan,  86,  87 
of  lands  escheated  to  State,  41,  313-314 
of  trees,  freehold  and  other,  25,  300 
partner's  share  in  lands,  sale  of,  22,  95,  144,  145 
pre-emption  of  adjacent  owner  not  applicable  to  Arazi  Mine, 

24 

preferential  right  of  owner  as  to  things  placed  by  another,  23 
protection  of  highest  bidder  at,  45 
provisions  as  to,  of  Arazi  Mirie,  20-27,  293-305 
purchaser  or  agent  must  be  present  at,  20 
sale  of  Mahlul  houses  by  auction,  224-227 
saving  as  to  certain  property  of  debtor  (repealed  clause),  136 
specimen  of  certificate  issuable  upon,  272 
subject  to  rights  of  infant,  lunatic,  &c.,  35,  310 
unauthorised,  23,  296 
without  consideration,  21,  295 
• 

SEVERANCE, 

certificate  as  to,  of  shares  in  lands,  145 

issue  of  new  title-deeds  after,  145 

of  shares  of  partners  in  lands,  10,  11,  96,  144^  145,  288 

SHEIK-UL-ISLAM. 
authority  of,  70,  350 


390  Index. 


SISTER.    See  INHERITANCE. 


disposal  of,  being  Arazi   Mirie,  upon  failure  of  trustee    to 

repair,  46}  321 

ownership  of,  of  former  buildings,  vineyards,  &c.,  43,  44 
valuation  of,  of  destroyed  buildings,  246 
--  ,  o,f  new  or  restored'  buildings,  246 

SLAVE, 

legal  position  and  rights  o£  as  to  land,  60,  340 

fi 

SOLDIER,  ' 

gift  of  part  of  land  to,  36,  182,  311 
preservation  of  rights  of,  as  to  lands,  39,  312 
privilege  of,  as  to  descent  to  his  heirs,  29,  308 
-  :  -  ,  as  to  disposal  of  vacant  lands,  33 

SUCCESSION, 

fees  payable  upon,  74,  75,  96,  166,  173,  205,  235,  245,  252 

formalities  and  fees  upon,  73 

to  Musakafat  and  Musteghillat,  duties  payable  upon,  173,  205 

TAPU, 

accomplice  of  murderer  cannot  have  right  of,  240 

assertion  of  right  of,  period  for,  34,  309 

burial  of  corpses  upon  land  held  by,  unlawful,  17 

definition  of  term,  3 

disposal  of  lands  upon  forfeiture  of  right  of,  35 

disposal  of  lands  when  holder  of  right  to,  conceals  his  posses- 

sionj  41 

extension  of  system  of,  to  "  khassa"  and  other  lands,  67,  348 
extent  of  right  of,  79  * 

forfeiture  of  right  to,  34,  35,  309 
land  becomes  subject  to  right  of,  if  owner  fail  to  cultivate 

properly  or  to  re-occupy  after  flood-waters  have  retired,  37/ 

38,  311 

lands  of  infants,  lunatics,  &c.,  do  not  become  subject  to,  40 
meaning  of  term,  3 
paramount  rights  of  person  having  right  to;  45,  318 


t 

Ind&x.  391 


TAPU— continued. 

period  for  assertion  of  right  of,  34,  309  » 

sale  of  land  held  1  293-305 

sale  of  land  held  by,  subject  to  rights  of  infant,  &c.,  35,  310 

staff  to  be  employed  at  Tapu  office, 

successive  degrees  of  persons  entitled  to,  35,  315 

Tapu-value,  what  is,  142 

value,  definition  of,  142 

when  abandoned  lands  do  not  become  subject  to,  38 

TAPU  SEXED.     See  TITLE-DEEDS. • 

TAPU  CLERK, 

assignment  of,  to  Kaza,  183 

duties  of,  as  to  certificates,  188,  189 

duties  of,  as  to  deeds,  89 

duties  of,  as  to  making  visits  to  villages,  187 

duties  of,  as  to  Yoklama  register,  250 

fees  of,  255 

report  by,  to  Tapu  official  at  capital  of  Liva,  189 

salary  of,  193,  107 

selection  of,  89 

status  of,  196 

TASAREUF.     See  POSSESSION. 

TAXES, 

application  of,  by  commission,  124 

application  of  excess,  122 

apportionment  of,  120 

building  tax,  126 

commission  for  regulation  of,  120 

duties  of  commission  for  regnlation  of,  121 

increase  'of,  upqn  registered  values  of  Musakafat  and  Muste- 

ghillat,  245 
management  of,  120 
payment  of,  by  alien,  169 

payment  of,  on  property  in  Yoklama  summary,  254 
provision  against  unlawful  increase  of,  125 
record  of  amendment  of,  129 


f 
392  Index. 


TAXES — continued. 

r  remission  of,  certificate  of,  granted  to  poor,  &c.,  124 
remission  of,  .upon  destroyed  property,  123 
transfer  of  lands  impossible  unless  taxes  paid,  131 
upon  enclosures,  millr,  &c.,  by  whom  payable,  67,  348 
village  divisional  officers  to  apportion  trade-tax,  126 

TIMBER, 

ownership  of,  15 

TITHE,. 

increase  of,  161 

upon  crops  generally,  66,  67,  348 

upon  produce  of  orchard,  14 

trees,  14 

vineyard,  14 

TITLE, 

acquisition  of,  by  length  of  possession,  41,  42,  45,  314-315, 

319 
duty  payable  upon  deed  of,  acquired  by  length  of  possession, 

93 
no  title  acquired  by  lapse  of  time  in  respect  of  pullic  lands  (A. 

Metruke),  53,  330 
PRESCRIPTIVE, 

fee  payable  upon  deed  relating  to,  93 
issue  of  new  deed  as  to,  143 
proof  of,  251 

TITLE-DEED, 

adoption  of  uniform  system  as  to  A.  MiriS,  88 

classification  of  title-deeds,  184,  185 

comparison  of,  with  register,  208 

contents  of,  119 

contents  of  printed  Tapu-Sened,  76,  354 

cost  of,  93 

delivery  of,  to  purchaser,  97,  146 

disposal  of  old,  94,  95,  103,  146 

examination  of,  by  census  officials,  119 

fees  pay  able  ^or  new,  74,  75,  92,  93,  353 


Index.  393 

TITLE-DEED- 

fur  lands  in  Constantinople,  '_ 

'•<l>i*teijhiU<-  ,  143,  144 

for  simple  Emlak,  229,230 

;e  of  new,  143,  144,  249,  250,  2M,  261 

of  new,  upon  loss  of  old,  94,  95,  103,  144,  209. 

of  new,  upon  loss  of  old,  form  of  certificate  used  upon,  101 
marginal  notes  upon,  prohibited,  1 
mortgage  deeds,  preparation  of,  208 

new,  for  severed  parts  of  land  of  partners  or -joint  owners,  175 
of  certain  lauds  in  Constantinople,  2 
of  land  sold  for  payment  of  debts,  2 
of  waste  lands  (Buz,  Kiraf),  76 
old  deeds  to  be  given  up  on  issue  of  new,  94 
possession  of  A.  MevA-nfe  without,  unlawful,  250,  251 
preparation  of,  of  Muzbata  and  non-Mazbata  Vakfs,  207 
production  of,  by  owner  to  Emlak  office,  271 
registration  of,  195 
renewal  of  lost,  94,  95,  103, 144,  209 
sealing  of,  195,  265 

separate,  for  each  Yakf  of  Mitsakafat  and  Husteghillat,  209 
time  for  exchange  of  old  for  now,  94 
transmission  of,  to  Kaza,  Liva,  Vilayet,  &c.,  195,  265 
Yakf  lauds,  issue  of  new  title-deeds  as  to,  143,  249,  360 
writing  upon  margin  of,  forbidden,  90 

TBEES, 

application  of  Land  Law  to,  on  Mirie  and  Mevkufe  land,  160, 

364 

cutting  of,  in  °  Baltalyk  "  woods  and  forests  (A.  Metnike),  - 
devolution  of  Mulk,  by  inheritance,  32,  308 
exclusive  right  "6f  owner  to  graft,  14 
fruit,  provision*  as  to,  14,  15 
inheritance  of  freehold  (Mulk),  32,  308 
non-fructiferous,  provisions  as  to,  14,  15 
ownership  of  grafted,  14 
preferential  right  of  owner  of,  as  to  site  of,  36 
sale  of  freehold,  on  land  held  by  Tapu,  25 
when  they  go  with  land  sold  and  when  not,  25,  300 


f 
394  Index. 


TRESPASS, 

{provisions  against,  9,  10, 18,  66,  285,  286 

UNCLAIMED  LAND.     See  MAHLUL,  OUTLYING  LANDS. 

f 

VAKF  (DEDICATION),   • 

aboUti'on  of  racial  disabilities  of  Arable  Vakf  lands,  259 

application  of  new  law  to  mixed  Vakfs,  174 

application  -of  procedure  to  Mukata  Vakf  sites,  167 

avoidance  of  delay  as  to  title-deeds' of,  265 

certificates  .for,  not  to  be  issued  in  respect  of  other  kinds  of 

land,  192 

classification  of  Vakfs  (Mazbata  and  non.-Maz.bata),  198 
disposal  of,  upon  failure  of  heirs,  200 
exempted  non-Mazbata  Vakfs,  204 
Ijaretein  constitutes .  the  essential   nature  of  Vakf  property, 

365,  n.  3  to  XII. 
inheritance  of,  199,  203;  204 

issue  of  new  title-ujed  as  to  Vakf  land,  143,  249,  360 
Mazbuta  Vakfs,  administration  of,  198 
r-,  alienation  of,  203,  204 

— -,  devolution  of,  upon  death,  199 

•;..'':''1.: »  extension  of  inheritance   of  Musakafat   and 

Musteghillat  found  in,  172 
Mukata  Vakf,  regulation  of  Musakafat  and  Musteghillat  the 

sites  of  wjiich  areV.247 
Mulhaka  Vakfs,  permissive  character  of  law  of  inheritance  as 

to,  257 
notice  as  to  the  issue  of  title-deeds  for  yakf  property,  143, 

360 

of  Sultans,  extension  of  inheritance  in,  17^ 
only  plenary  owner  can  make  land  Vakf,  65,  345  , 
registration  of,  191 
separate  rent  for  each,  246 
separate  title-deed  for  each,  209 
title-deed  as  to,  preparation  of,  207-209,  249,  261 


VALUATION, 

mode  of,  of  land,  93,  187,  205,  247 


Index.  395 

i,  21 

VII.. 

carried  out  at  headquar 
each  village  is  subject,  97 
sional  officers,  126 
visit,  187 

icii  form  a  division,  126 

VINEYABDS, 

devolution  .  former,  44,  317 

disposal  of  sitevS  of  former,  44,  317 

law  for  protection  of,  66,  348 

ownership  of,  made  by  deceased  owner,  43,  315 

provisions  as  to,  18,  14,  : 

sale  of,  of  infant,  lunatic,  &c.,  27, 

sale  of  freehold,  25 

WASTE  LANDS, 

gran:  .  in  certain  ca?es,  141 

lav.  ^tprppriation  of. 

occupation  of,  141,  142 

permission  of  land  ,oiiicer  necessary  before  occupation,  141,  142 

tithe  not  to  be  taken  upon  certain,  for  one  or  two  year<. 

title-deeds  of. 

WATER, 

preservation  of  ancient  rights  as  to  drinking,  irrigation,  &c., 
65,  348 

WIFE, 

descent  to,  or  her  kinsmen,  32 
devolution  of  lands  upon,  32 


9       • 

396  Index. 


WJF 

•        jiua-i.  in  house  by  husbai; 

• -twccit  husband  and. 
IDS, 

ST  in  Baltaly^:  (  ),  48 

te  on  value  of,  when  new  title--.'  ied,  9J* 

iwful  cutting  of,  <6i  '9f^^^., 

\ILAQ).     fi 

MA, 
inak : 

3TEB, 

kei-i 

making  of,  23L'. 


•  1IITKD 


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